Please read these Fluz Gift Card Seller Agreement (the “Agreement”) carefully. This Agreement sets forth a legal agreement between you (“you” or “your”) and Fluz Fluz, LLC, its subsidiaries, owners and affiliates (collectively, “Fluz”, “we”, “us” and/or “our”) regarding your use of the websites, mobile application (the “Application”) and/or technology platform (collectively, the “Services”) offered, operated or made available by Fluz.
Representations and Warranties
You represent and warrant to us that: (a) you are at registered US business in good standing with valid business documentation (as requested and determined by Fluz in its sole discretion); (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; (f) your use of the Services will be in compliance with this Agreement; and (g) the Service(s) requested by you hereunder and pursuant to any agreement incorporated hereunder will be used by you solely for business or commercial purposes and not for personal, family, or household purposes.
WHEREAS
Seller seeks to buy pre-owned Gift Cards and Store Credits locally at its retail locations or via direct to consumer local advertising or buy new Gift Cards through various wholesale acquisition channels and sell them to Fluz. Fluz desires to purchase the Gift Cards and Store Credits that Seller acquires for resale in the markets it serves; and Seller has agreed to the following terms of this agreement in addition to accepting all the terms and conditions and privacy policy listed on www.fluz.app
DEFINITIONS:
The following definitions shall apply for purposes of this Agreement:
Bad Cards: Any change from the Gift Card balance, at any point in time after Fluz has paid Seller for such Gift Cards, from the balance specified on the original sales invoice by and between Seller and Fluz that Fluz, in its reasonable discretion, believes that such modification was caused by: (a) the use of the applicable Gift Card by Seller, (b) the use of the Gift Card by a party who sold the Gift Card to Seller, (c) the use of the Gift Card by a party who was employed by Seller or affiliated with Seller, or (d) fraudulent or suspected fraudulent activity as a result of which, the Issuer places a freeze on the balance of the applicable Gift Card or cancels the applicable Gift Card; (each, a “Bad Card” and collectively, “Bad Cards”)
Claims: Any and all losses, claims, judgments, damages, and/or liabilities (collectively, “Claims”) to Fluz resulting from Bad Cards;
REPRESENTATIONS:
Seller represents and warrants as follows: Compliance with Law: Seller is and during the term of this Agreement will remain in compliance with all applicable federal, state and local laws, rules, regulations, and tariffs relating to the resale and purchase of Gift Cards and Store Credits and Seller will only sell Gift Cards and Store Credits to Fluz that to the best of Seller’s knowledge were acquired legally.
LIABILITY:
Seller is liable for Gift Cards and Store Credits for a period up to and including one-hundred-and-eighty (180) calendar days unless the Gift Card or Store Credit is a restaurant brand or is deactivated by the merchant then the seller remains liable for a period up to and including one-hundred-eighty (180) calendar days. Liability for the seller begins when Seller delivers the Gift Card or Store Credit.
Right to Recoup its Loss from Claims:
For any loss from claims for which Fluz has notified Seller in writing within 90 days of claim filing, Fluz shall have complete authority to perform the following actions to Seller in order to recoup its loss: perform an ACH debit, charge a credit card number, hold back its payment for new cards submitted to Fluz by Seller. If Fluz is unsuccessful, then Seller is still responsible to issue a full refund to Fluz for the Bad Cards. If Seller does not issue such a refund, then Fluz may use any available remedies at law to collect reimbursement from Seller for same and in all such case, Seller shall be responsible to reimburse Fluz for all of its legal fees, court fees, and collection costs in seeking reimbursement from Seller.
Governing Law/Jurisdiction:
This Agreement shall be governed in accordance with the laws of the State of New York except with respect to the conflict of law principles thereof. In the event of a dispute arising under this Agreement, the Superior Court of the State of New York venued in Centre St.and the United States District Court for the Southern District of New York venued in Pearl St. shall have co-exclusive jurisdiction to resolve such a dispute.
CONSENT TO USE ELECTRONIC SIGNATURES AND COMMUNICATIONS.
Seller Consent. To the extent permitted by applicable law, Seller consents to use electronic signatures and to electronically receive all records, notices, statements, communications, and other items for all services provided to Seller under these Terms and in connection with Seller’s relationship with us (collectively, “Communications”) that we may otherwise be required to send or provide Seller in paper form (e.g., by mail). Seller’s consent will remain in effect until Seller withdraws its consent as specified below.
Seller’s Right to Withdraw Consent. Seller’s consent to receive Communications electronically will remain in effect until Sellerwithdraws it. Sellermay withdraw its consent to receive further Communications electronically at any time by contacting us at +1 929-357-2780. If Sellerrevokes its consent to receive Communications electronically, we reserve the right to close the Card Account and return the remaining Card Account balance as set forth in these Terms. Such revocation will be effective after we have a reasonable period of time to act on Account Owner’s withdrawal request. Please note that such revocation of consent to receive Communications electronically will not apply to any Communications that were sent before Account Owner’s request to withdraw consent becomes effective. After such revocation is effective, Authorized Users will no longer be able to use a Card Account, except as expressly provided in these Terms. In addition, we may charge Sellera reasonable fee for providing paper copies of Communications.
Changes. We reserve the right, in our sole discretion, to communicate with Sellerin paper form. In addition, we reserve the right, in our sole discretion, to discontinue the provision of electronic Communications or to terminate or change the terms and conditions on which we provide electronic Communications. Except as otherwise required by applicable law, we will notify Sellerof any such termination or change by updating these Terms on the Website or delivering notice of such termination or change electronically.
Fluz Privacy Policy
Please read the Fluz Privacy Policy carefully for information relating to our collection, use, and disclosure of your personal information. By accessing or using the Services you agree to Fluz’s Privacy Policy.
Limitations on Liability
In no event shall the Fluz or its affiliates, contractors, employees, agents, payment card networks, or third party service providers or suppliers (including Payment Card Networks or payment processors) be liable to any person or entity whatsoever for any direct, indirect, incidental, special, compensatory, consequential, or punitive damages or any damages whatsoever, including but not limited to: (i) loss of goodwill, profits, business interruption, data or other intangible losses; (ii) your inability to use, unauthorized use of, performance or non-performance of the Services; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained in the Services or any materials or content obtained through the Services; (vi) any transactions entered into through the Services, (vii) any property damage including damage to your device or computer system caused by viruses or other harmful components during or on account of access to or use of the Services, including any site to which the Services provide hyperlinks; or (viii) damages otherwise arising out of your use of the Services. These limitations of liability shall apply regardless of the form of action, whether based on contract, tort, negligence, strict liability or otherwise, even if Fluz has been advised of the possibility of damages.
Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.
Indemnification
You agree to indemnify and hold harmless the Fluz Parties from and against all claims, actions, demands, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees, resulting from your breach of any provision of the Terms and any Additional Terms, or any warranty you provide herein, or otherwise arising in any way out of your use of the Services and/or any software. You agree to cooperate fully with Fluz in asserting any available defenses in connection with a claim subject to indemnification by you under these Terms.
Research, Legal Process and Requests for Information
If we receive any legal process relating to you or your Account, you authorize us to comply with it. “Legal process” means any document that appears to have the force of law that requires us to hold or pay out funds from your account, including a garnishment, attachment, execution, levy or similar order. We do not have to determine whether the legal process was validly issued or is enforceable. If any action, including administrative proceedings, garnishment, tax levies, restraining orders or another action is brought against you or your account, you will be liable to us for any loss, cost or expense (including attorneys’ fees) resulting from our compliance with any legal process. If we receive any subpoena, court order or request for information or documents from a government entity or arbitration panel relating to your account, we are authorized to comply with it and will charge you the Legal Research Fee.
Account Monitoring
You acknowledge that Fluz will monitor your transaction activity in connection with your use of the Fluz services. You further agree and acknowledge that Fluz may suspend, in its sole discretion, the access to the Fluz services and funds in your accounts for any reasonable period of time required to investigate suspicious or unusual activity. Fluz will make good faith efforts to notify you promptly following suspension. Fluz shall have no liability for any losses or claims, either direct or indirect, which you may attribute to any suspension of funds.
AML Monitoring
Use of the Fluz services is limited to the support of transactions for certain of your customers with eligibility to be determined based on certain criteria and related conditions imposed by Fluz. Fluz reserves the right to review any or all of your related transaction information to ensure that they conform with the standards imposed related to use of the services.
Right to Audit
Fluz shall have the right to audit or to engage an additional third party to audit your performance of your obligations under this Agreement. You will reimburse us for the costs of such audit. In the event such audit reveals deficiencies that require corrective measures, you will confer with Fluz to determine the scope, timeline and implementation of such measures.
Requests for Information
Within three (3) business days of receipt of any request by Fluz (or sooner as may be required by any regulatory authorities), you shall provide a copy of all records and any other documentation related to use of the Fluz services.
Modification/Termination of the Services
Fluz may, in its sole discretion, modify, suspend, or terminate the Services and/or any portion thereof, including the Fluz Rewards Program, (which change, suspension or cancellation may impact and/or invalidate any reward you may have earned or accumulated in any Fluz Reward Program), at any time for any reason with or without notice to you. Company decisions are binding and final.
If your account is canceled or terminated, you will no longer be authorized to use the Services, but you will still be bound by your obligations under these Terms and any Additional Terms, including the warranties made by you, and by the disclaimers and limitations of liability. Fluz shall not be liable to you or any third party for any modification, suspension or termination of the Services or your access to the Services. Fluz shall not be liable for any unclaimed rewards balance lost when an account is suspended or terminated.
Except where otherwise provided, the Services are currently available without charge. Fluz reserves the right to charge a fee for access to or use of the Services, including the site, any mobile app and any other services available through the Services, at any time in the future, and Fluz will notify you before it does so. Your access to or use of the Services before such time does not entitle you to access or use without charge in the future.
