Effective as of February 1st, 2018 (last updated February 2018)
Content on this Site that is provided by ByteFrost or its licensors, including certain graphics, photographs, images, screenshots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“ByteFrost Content”) is the property of ByteFrost and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.
You agree not to download, display or use any ByteFrost Content located on the Site for use in any publications, in public performances, on websites other than this Site for any other commercial purpose, in connection with products or services that are not those of ByteFrost, in any other manner that is likely to cause confusion among consumers, that disparages or discredits ByteFrost and/or its licensors, that dilutes the strength of ByteFrost’s or its licensor’s property, or that otherwise infringes ByteFrost’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any ByteFrost Content or Third-Party Content that appears on this Site.
If you are a trademark or copyright owner and you believe that your trademark or copyright rights have been violated, please contact us with specific and detailed information of the violation.
Use of the Site and Posting Policy
The following requirements apply to your use the Site:
- you will not use any electronic communication feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful;
- you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;
- you will not collect or store personal data about other users;
- you will not use the Site for any commercial purpose not expressly approved by ByteFrost in writing;
- you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication;
- you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
From time to time on certain areas of our Site, you may be able to submit photos, written posts and certain other materials (“User Content”). By using these features, you agree that you will not post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by ByteFrost; that you will not post any content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential; that you will not impersonate any person or organization, including without limitation, the personnel of ByteFrost, or misrepresent an affiliation with another person or organization; you will not post any content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Site, or feature of the Site. You further understand and agree that you have no ownership rights in materials you submit to us, to any account you may have with us, or other access to the Site or features therein. ByteFrost may cancel your account and delete all User Content associated with your account at any time, and without notice, if ByteFrost deems that you have violated these Terms, the law, or for any other reason. ByteFrost assumes no liability for any information removed from our Site and reserves the right to permanently restrict access to the Site or a user account.
By displaying, publishing, or otherwise posting any User Content on or through the Site, you hereby grant to ByteFrost a non-exclusive, sub-licensable, worldwide, fully-paid, royalty-free license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, in video or music software computer programs. You continue to retain all ownership rights in your User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own the content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree to indemnify and hold ByteFrost, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, including the Posting Policy, or any violations thereof by your dependents or which arises from the use of User Content you submitted, posted, or otherwise provided to ByteFrost or this Site.
If a particular feature or service offered on the Site requires you to open an account, you must complete the specified registration process by providing us with current, complete, and accurate information as requested by the applicable online registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data and any loss caused by your failure to do so is your responsibility. After you have fully completed the registration form, you may be asked to choose a password and a username. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. ByteFrost is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.
Certain areas of the Site may allow you to submit a request to activate certain stored value cards through the Site. By submitting a request to activate a card through the Site, you represent and warrant to us that (i) all of the information provided in connection with such activate request is complete and correct, (ii) that you are the lawful holder of the card and (iii) that you have read and agree to be bound by the Cardholder Agreement applicable to the card.
Although we intend to provide accurate and timely information on the Site, the Site (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. The information published on the Site is provided as a convenience to our customers and is provided for informational or transactional purposes only. In an effort to continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including without limitation information regarding our policies, products, and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained in the Site are your sole responsibility and we shall have no liability for such decisions. If you need specific details about any information contained in our Site, you should contact us.
Representations, and Limitations of Liability
ByteFrost makes no representations about the reliability of the features of this Site, the Content, User Content, or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. ByteFrost makes no representations regarding the amount of time that any Content or User Content will be preserved.
ByteFrost does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by ByteFrost without the prior review and written approval of ByteFrost.
THIS SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BYTEFROST BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE, NOR SHALL BYTEFROST BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND BYTEFROST’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL BYTEFROST OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF BYTEFROST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Third Party Websites
Both you and ByteFrost acknowledge and agree that no partnership is formed and neither of you nor ByteFrost has the power or the authority to obligate or bind the other. These Terms will be governed by and construed in accordance with the internal laws of Delaware without regard to conflicts of laws principles. By using this site, you hereby agree that any and all disputes regarding these Terms will be subject to the courts located in Wilmington, Delaware. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS SITE AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law.
The failure of ByteFrost to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of ByteFrost, shall not be deemed a breach of these Terms.
These Terms constitute a binding agreement between you and ByteFrost and is accepted by you upon your use of the Site or your account. These Terms constitute the entire agreement between you and ByteFrost regarding the use of the Site and your account. By using the Site, you represent that you are capable of entering into a binding agreement and that you agree to be bound by these Terms.
PREPAID PRODUCT PURCHASE AGREEMENT
Under the Electronic Signatures in Global and National Commerce Act (“E-Sign”), this Agreement is legally binding in the same manner as are hard copy documents executed by hand signature. This Card Purchase Agreement shall be governed by the provisions of E-Sign. You agree:
- that the Agreement shall be effective by electronic means,
- to be bound by the terms and conditions of this Agreement, and
- that you have the ability to print or otherwise store the Agreement.
THIS PREPAID PRODUCT PURCHASE AGREEMENT (this “Agreement”), is by and between BYTEFROST, INC., a Delaware corporation company doing business as ByteFrost Digital Solutions, a Delaware corporation company, with its registered office at 300 Delaware Avenue, Suite 210-A, Wilmington, DE 19801 (“ByteFrost”), and the customer purchasing Prepaid Items and electronically agreeing to the terms of this Agreement (“Buyer”) (each of ByteFrost and Buyer, a “Party”, collectively, the “Parties”).
Purchase of Prepaid Items.
- Purchase Price; Orders. Buyer hereby agrees to purchase
- physical prepaid closed-loop third party merchant gift cards, content cards, gaming download and subscription cards, and music download cards (collectively “Merchant Cards”),
- prepaid digital closed-loop third party merchant gift codes, content codes, gaming download and subscription codes, and music download codes (collectively, “Digital Codes”), and/or
- physical prepaid open-loop stored value cards (“ByteFrost Cards”) (Merchant Cards, Digital Codes, and ByteFrost Cards are hereinafter collectively referred to as “Prepaid Items”) from ByteFrost or its Affiliates in such number and denomination, with such customization, if any, for the total purchase price (“Purchase Price”) as described in any order submitted through www.ByteFrost.com (together with any successor websites, the “Website”), or by telephone, e-mail or such other method designated by ByteFrost, in each case as permitted by ByteFrost from time to time (each such order, an “Order”). Buyer acknowledges and agrees that:
- the terms of this Agreement apply to each Order and purchase of Prepaid Items from ByteFrost, and
- each Order constitutes a binding, unconditional contract for the purchase and sale of the Prepaid Items that may not be canceled by Buyer. Notwithstanding anything to the contrary contained herein, Buyer acknowledges and agrees that acceptance and fulfillment of each Order shall be at ByteFrost’s sole discretion. ByteFrost may choose to reject any Order or decline to fulfill any Order upon notice to Buyer, subject to ByteFrost’s refund of any related unearned funds previously tendered by Buyer, and that neither ByteFrost nor any of its Affiliates shall have any liability arising as a result of any such action.
- Buyer authorizes ByteFrost to accept and process Orders from anyone using the information necessary to access Buyer’s account and pay for Orders including the user identification number and password provided to Buyer by ByteFrost in connection with Buyer’s registration with ByteFrost, and Buyer’s payment information (collectively “Information”). Buyer agrees to be fully liable for any purchase using the Buyer’s Information. ByteFrost will have no obligation, liability or responsibility for verifying the identity of anyone using Buyer’s Information, nor will ByteFrost have any obligation, liability or responsibility to Buyer for any losses incurred by Buyer as a result of the unauthorized use of Buyer’s Information. Buyer has the responsibility for safeguarding its Information and shall not reveal its Information to anyone not intended to place orders on its behalf. If Buyer suspects that an unauthorized user may have had access to its Information, Buyer must immediately notify ByteFrost. Buyer shall:
- safeguard the Information and prevent unauthorized access to Buyer’s account,
- be responsible for any transaction which is attempted or initiated using the Information, and
- indemnify and hold harmless ByteFrost, its Affiliates, sureties, officers, directors, agents, employees, parents, and subsidiaries, from any and all Third-Party Claims (as defined below) arising out of or in connection with any access or use of Buyer’s account utilizing any such Information.
Restatement of Representations and Warranties.
- Buyer acknowledges and agrees that each submission of an Order to ByteFrost shall constitute a restatement and renewal of each and every representation and warranty made by Buyer hereunder as fully as if made on the date such Order is submitted to ByteFrost.
- ByteFrost shall provide to Buyer all disclosures, terms and conditions, redemption instructions and any other such materials relating to the Prepaid Items (the “Terms”) that have been supplied to ByteFrost by the Prepaid Item provider for distribution to Cardholders. Buyer shall ensure that the Terms are provided to each person to whom Buyer, its agent or representative delivers a Prepaid Item (“Recipient”) at the time a Prepaid Item is delivered to such Cardholder.
- Payment of Purchase Price and Taxes; Shipment.
- Purchase Price. Buyer shall tender the entire Purchase Price for each Order in U.S. Dollars to Company within thirty (30) days immediately following submission of the Order to Company. The Purchase Price does not include Taxes (as defined below). ByteFrost will not ship Buyer’s Order until it receives the entire Purchase Price and any applicable Taxes. All payments are final and non-refundable.
- Buyer agrees to pay all applicable federal, state, and local taxes as well as any sales or use taxes applicable to the purchase and sale of the Merchant Products (collectively, “Taxes”), and will remit to ByteFrost all Taxes that ByteFrost is required to collect in connection with the sale of Prepaid Items under Applicable Law.
- Delivery of Physical or Digital Prepaid Items. Following ByteFrost’s receipt of the Purchase Price, ByteFrost will promptly deliver any physical or digital Prepaid Items described in each Order to Buyer to the physical or digital address designated by Buyer in connection with the submission of such Order (“Delivery Address”). Buyer acknowledges that
- ByteFrost’s obligation to deliver such Prepaid Items to Buyer is expressly conditioned upon receipt of the Purchase Price in good funds, and
- any agreed-upon delivery date for such Prepaid Items is subject to change for any cause that interferes with ByteFrost’s suppliers’ production, supply, or transportation of the Prepaid Items, including, but not limited to, any event of Force Majeure (as defined below). Title to physical and digital Prepaid Items, and the risk of loss associated with such Prepaid Items, shall pass to Buyer upon delivery of the Prepaid Items to the Delivery Address. Failure of Buyer to receive and accept any Prepaid Items when delivered constitutes a breach by Buyer of this Agreement.
Cardholder Agreements; Product Activation.
- Cardholder Agreements. ByteFrost shall provide to Buyer the same number of Cardholder Agreements as ByteFrost Cards purchased by Buyer hereunder. Buyer shall ensure that a Cardholder Agreement is provided to each person to whom Buyer delivers a BYTEFROST Card at the time a BYTEFROST Card is delivered to such Cardholder. “Cardholder Agreement” means the agreement governing the terms and use of a BYTEFROST Card between the financial institution issuing the BYTEFROST Card (“Issuing Bank”) and a Cardholder.
- Buyer acknowledges the Prepaid Items must be Activated (as defined below) prior to use, and that ByteFrost will Activate all Prepaid Items when in transit to Buyer or at such time or through such other method as designated by ByteFrost from time to time. BUYER FURTHER ACKNOWLEDGES THAT THE PREPAID ITEMS SHOULD BE TREATED LIKE CASH AND STORED IN A SECURE MANNER UNTIL DISTRIBUTED TO THE CARDHOLDERS. “Activate(d)” means enabled for purchases and capable of being used for purchases.
Loss Prevention; Fraudulent Activity.
Promptly upon a Party having actual knowledge of any loss, theft or damage related to, or arising out of, the Prepaid Items, the Activation or redemption of the Prepaid Items, the unauthorized issuance or attempted issuance of the Prepaid Items, or any fraudulently Activated Products or attempts to fraudulently Activate Products, it shall notify the other Party thereof, along with any related pertinent information. In connection with the receipt of such notice, the Parties shall use commercially reasonable efforts to investigate the foregoing and to mitigate any harm therefrom (such as by de-Activating the related Product(s) as to any unused balance on the affected Product(s)). As between ByteFrost and Buyer, the Parties acknowledge that liability for losses, including damage or destruction, with respect to the Prepaid Items, shall be as follows:
- Any losses related to or arising out of the Prepaid Items prior to the shipment of the Prepaid Items to the Delivery Address shall be the sole responsibility of ByteFrost, except to the extent related to Buyer’s breach of this Agreement or Buyer’s fraud, willful misconduct or gross negligence; and
- Any losses related to or arising out of the Prepaid Items following shipment of the Prepaid Items to the Delivery Address shall be the sole responsibility of Buyer, except to the extent related to ByteFrost’s breach of this Agreement or ByteFrost’s fraud, willful misconduct or gross negligence.
Prohibition on Re-Sale; Use of Prepaid Items.
- BUYER REPRESENTS, WARRANTS AND COVENANTS THAT IT SHALL NOT RE-SELL, NOR PERMIT THE RE-SALE OF, ANY OF THE PREPAID ITEMS, AND ACKNOWLEDGES THAT RESALE OF PREPAID ITEMS MAY CONSTITUTE A VIOLATION OF LAW AND SUBJECT BUYER TO CIVIL AND/OR CRIMINAL PENALTIES.
- BUYER REPRESENTS, WARRANTS AND COVENANTS THAT IT SHALL ONLY USE OR DISTRIBUTE THE PREPAID ITEMS PURCHASED HEREUNDER FOR LOYALTY, AWARD OR PROMOTIONAL PURPOSES.
- Certain Representations and Warranties.
- Each Party represents and warrants to the other that: a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; b) this Agreement has been duly authorized, executed, and delivered by it;
- this Agreement constitutes it’s valid and binding obligation, enforceable in accordance with its terms; and it shall comply at all times with all Applicable Law (as defined below) in performing its obligations and exercising its rights under this Agreement.
- its entry into and performance of its obligations under this Agreement do not violate and will not cause a default under, any contracts, agreements, or instruments to which Buyer is a party or its properties bound;
- it will fully perform its obligations under this Agreement in compliance with Applicable Law; and
- buyer further represents and warrants to ByteFrost that all information regarding Buyer, if any, provided to ByteFrost by Buyer in connection with the purchase of the Prepaid Items is true and accurate in all respects.
ByteFrost shall provide Buyer with designated ByteFrost contacts, who will provide Buyer with customer support in connection with the Orders. Buyer shall be responsible for any direct customer service support for Cardholders; however, Buyer shall promptly notify ByteFrost of any inquiries or complaints it receives from Cardholders arising out of any distribution of Prepaid Items and Buyer shall not, and shall not permit any third party to, make any representations on behalf of or concerning any Prepaid Item provider.
Certain Limitations; Disclaimers; Exclusions.
- Except for the warranties of ByteFrost set forth in Section 6 (a) above, BYTEFROST IS SELLING TO BUYER THE PREPAID ITEMS AND PROVIDING THE SERVICES HEREUNDER “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS AND IMPLIED), INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES RELATING TO QUALITY, PERFORMANCE, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BYTEFROST BE LIABLE TO BUYER OR ANY OTHER PARTY, WHETHER BY WAY OF INDEMNIFICATION, CONTRIBUTION, OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST PROFITS OR SAVINGS), INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (E.G., CONTRACTS, TORTS, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE), HEREUNDER, OR ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PURCHASE OF THE PREPAID ITEMS OR THE PROVISION OF SERVICES HEREUNDER EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS SECTION LIMITS BUYER’S RESPONSIBILITY FOR THE PAYMENT OF THE PURCHASE PRICE. BUYER AGREES THAT THE AGGREGATE LIABILITY OF BYTEFROST HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE.
Buyer agrees to indemnify and hold ByteFrost, each Licensee, Issuing Bank, and each Provider and their respective Affiliates, directors, officers and employees (“ByteFrost Indemnified Parties”) harmless from and against all third-party claims, actions, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Third Party Claims”) relating to or arising in connection with Buyer’s:
- acts or omissions;
- breach of its representations, warranties, covenants or obligations contained in this Agreement;
- non-compliance with Provider Requirements; or
- fraud, gross negligence or willful misconduct.
- Regulatory Compliance.
- Buyer represents and warrants that all information it has provided to ByteFrost and each Issuing Bank (which may include, without limitation, information regarding Buyer or its employees), is true, complete and accurate in all respects.
- Buyer agrees to cooperate fully and otherwise promptly provide to ByteFrost any and all relevant information with respect to Buyer, or its employees, as ByteFrost may deem necessary to comply with Applicable Law (as defined below). “Applicable Law” means any and all foreign, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with) an arbitrator or governmental authority and mandatory written direction from (or agreements with) any arbitrator or governmental authority that are applicable to the issuance, sale, authorization or usage of the Prepaid Items, or otherwise applicable to any of the Parties.
- Buyer acknowledges and agrees that ByteFrost may verify all information provided to ByteFrost by Buyer and screen such information against government databases as required by Applicable Law.
- Buyer acknowledges that the Cards purchased hereunder are anonymous cards and that Company has no knowledge as to whom Buyer will distribute the Cards or where such individuals reside. Therefore, each of Buyer and Company acknowledges and agree that the unclaimed property and gift card laws of the jurisdiction where the Cards are shipped shall apply to the Cards. Buyer represents and warrants to Company that Buyer not distribute any Card to any employee and other third parties that Buyer has a reasonable basis to believe is engaged in illegal conduct. Buyer acknowledges and agrees that Company reserves the right to deactivate all Cards purchased hereunder in the event Company reasonably suspects that one or more of such Cards are being used or are likely to be used in connection with any fraudulent or other illegal activity. Buyer agrees that Company shall not be liable for any losses or damages which may result from such action by Company.
- When required by Applicable Law, ByteFrost reserves the right to modify or discontinue, either temporarily or permanently, the services provided hereunder, including the distribution of Prepaid Items, as necessary to comply with Applicable Law. Buyer agrees that ByteFrost shall not be liable to Buyer or to any third party for any necessary modification, suspension or discontinuance of this Agreement due to the change in Applicable Law.
Provider Requirements; Marketing/Merchandising of Prepaid Items.
Buyer acknowledges that the providers of the Prepaid Items (“Providers”) may impose on Buyer certain requirements for the purchase, use and/or marketing or merchandising of the Prepaid Items, such as providing to Cardholders terms and conditions and disclosures relating to the Prepaid Items (“Provider Requirements”). Buyer acknowledges that the Provider Requirements may be modified from time to time. Buyer will provide to each Cardholder, materials provided by ByteFrost and/or Provider to ensure compliance with Applicable Law and Provider Requirements. All merchandising or marketing materials created or used by Buyer in connection with the Prepaid Items must be approved by ByteFrost and/or Provider. Buyer acknowledges that it may be required to complete and execute specific marketing agreements or other agreements as required by certain Providers in order to be eligible to purchase certain Prepaid Items.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Delaware, without regard to that state’s conflict of laws principles, and the Parties hereby irrevocably and unconditionally consent and submit to the personal jurisdiction of the United States District Court in the State of Delaware over all matters relating to this Agreement. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein.
Limitation of Time Period for Claims.
No action, claim, or proceeding by Buyer arising under or by reason of this Agreement or the purchase of the Prepaid Items pursuant to an Order shall be commenced or made by Buyer against ByteFrost after the expiration of twelve (12) months from the date upon which the Prepaid Items described in such Order are first delivered to the Delivery Address.
Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party and/or its suppliers (collectively, “Confidential Information”). All Confidential Information will remain the sole property of the disclosing Party. Each Party will maintain the strict confidentiality of the Confidential Information of the other Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the parties herein relating to this Agreement, and neither Party will disclose Confidential Information to any third party without the prior written consent of the disclosing Party. The following shall not be deemed Confidential Information:
- information rightfully received from a third party without accompanying confidentiality markings or disclosure restrictions provided that to such Party’s knowledge such third Party is not prohibited from disclosing such information to the receiving Party by a contractual, legal or fiduciary obligation to the other Party, its representatives or another Party;
- information that is or becomes publicly available through no wrongful act of the receiving Party;
- information that is already known by the receiving Party as evidenced by documentation bearing a date prior to the date of disclosure;
- information that is approved for release in writing by an authorized representative of the disclosing Party; and
- information disclosed pursuant to a valid court order or subpoena issued by a court of competent jurisdiction, provided that, to the extent not legally prohibited, the disclosing Party:
- provides adequate notice to the other Party to appropriately object to such disclosure;
- limits such disclosure to the extent practicable; and
- makes such disclosure only to the extent required.
- Except for any payment obligations set forth herein, neither Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its non-monetary obligations hereunder if such failure, delay or non-performance results in whole or in part from Force Majeure. The term “Force Majeure” shall mean an event causing, or reasonably expected to cause an imminent delay in performance or failure to perform which is due to an event beyond the reasonable anticipation and control of a Party, and shall include, without limitation,
- acts of God, explosion, flood, hurricane, lightning, earthquake, or fire;
- war or threat of war, sabotaging, riot, revolution, terrorist acts, civil disturbance or requisition;
- acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental authority not currently in effect upon the Effective Date of this Agreement;
- import and export regulations or embargoes;
- strikes, lockouts, or other industrial actions or trade disputes, or
- explosion, blackouts or brownouts; any interruption or shortage of, or failure or delay in, transportation, utilities, material, supplies, equipment, machinery, or electrical power.
Either Party desiring to rely upon Force Majeure as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice thereof to the other Party. Notwithstanding the foregoing, a Party seeking relief under this Section shall take all reasonable steps to mitigate the effects of such Force Majeure event and shall, as soon as practicable upon the cessation of such Force Majeure, resume its obligations hereunder.
- Any reference to ByteFrost in this Agreement shall hereinafter be deemed to also refer to ByteFrost’s Affiliates. During the Term, products and service provided to Buyer as set forth in this Agreement shall be provided by ByteFrost or its Affiliates at ByteFrost’s discretion. All terms and conditions of the Agreement shall apply as equally to ByteFrost’s Affiliates as to ByteFrost. For purposes of this Agreement, the term “Affiliate,” wherever it shall be used, shall mean, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and corporation partnerships), corporation company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party. “Control” shall mean the possession, direct or indirect, of the power to vote more than fifty percent (50%) of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
- Any terms stated, whether orally or in writing, by Buyer in any acknowledgment, purchase order, acceptance, instrument, etc., that are in addition to or in conflict with this Agreement shall not be binding on ByteFrost and are expressly rejected.
- Buyer agrees that ByteFrost’s sale of the Prepaid Items does not convey to Buyer any rights or licenses whatsoever, expressly or by implication, estoppel, or otherwise, with respect to any trademarks, trade names or other intellectual property rights related to the Prepaid Items. For the avoidance of doubt, Buyer acknowledges and agrees that it shall not use any trade name, trademark or other intellectual property of any merchant that may issue a Prepaid Item without the prior written consent of such merchant.
- ByteFrost may cure any default under this Agreement that ByteFrost has been notified of upon receiving written notice from the Buyer within a reasonable period of time.
- Buyer acknowledges and agrees that ByteFrost may terminate this Agreement without penalty or further obligation in order to comply with Applicable Law or if required to do so by any governmental authority.
- In the event that any part of this Agreement is deemed by a court of competent jurisdiction or governmental authority to be invalid or unenforceable, such provision shall be deemed to have been omitted from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.
- All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive termination or expiration of this Agreement.
- Except as limited by subsection (j) below, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in the Agreement will create or be deemed to create any third-party beneficiary rights.
- The rights and obligations of each Party under this Agreement are personal and may not be assigned either voluntarily or by operation of law, without prior written consent from the other Party; provided that ByteFrost may assign this Agreement to any entity that controls such Party, that is controlled by such Party or that is under common control with such Party, or that is a successor to substantially all of the operations of such Party without the consent of Buyer if the entity to which this Agreement is assigned is fully capable of performing the obligations hereunder of ByteFrost to the same extent as ByteFrost itself, and such entity agrees in writing to be bound by the terms hereof.
- Neither Party shall be deemed to have waived any of its rights, power, or remedies hereunder except in writing signed by an authorized agent or representative of the Party to be charged. Either Party may, by an instrument in writing, waive compliance by the other Party with any term or provision of this Agreement. The waiver by a Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
- This Agreement, together with all exhibits and schedules attached hereto, if any, constitutes the entire Agreement between the Parties and supersedes all prior agreements, understandings, and arrangements, oral or written, between the Parties with respect to the subject matter hereof. Notwithstanding any contrary provision contained herein, this Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Party against whom enforcement of any such modification or amendment is sought.
- The headings, captions, headers, footers and version numbers contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
- Captions contained in this Agreement are for convenience only and do not constitute a limitation of the terms hereof. The singular includes the plural, and the plural includes the singular. All references to “herein,” “hereunder,” “hereinabove,” or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.