This Merchant Services Agreement is updated as of December 1, 2016. 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” or “you”). 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”):
Please be advised that if 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 the Airshare Platform defined as:
• “Airshare Merchant Services” means the digital reward & e-gift card services offered by Airshare which provide Merchants with the ability to send Airshares as rewards or promotions to a Merchant’s own customers, and to redeem Airshares from Airshare recipients or “Giftees” given to them by the Merchant, or another person, or “Gifter”. Airshares generated by the Merchant, and redemptions of all Airshares for that Merchant will be tracked and reported to the Merchant in their Merchant dashboard.
0.1. “Approved Airshare Merchants” are:
• Merchants who have completed the Airshare Merchant Enrollment including providing necessary bank account information, and who have received acknowledgement that they are an Approved Airshare Merchant. These Merchants will receive an Approved Airshare Merchant designation both in the Airshare Marketplace and in Airshare Search results.
• 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://portal.airshare.com/marketpolicy.html.
Section 2 — Airshare Redemptions
2.01 Authorized Redeemers
It is the Merchant’s responsibility to authorize who can redeem Airshares on behalf of the Merchant. To do so you will need to provide Authorized employees with your Airshare Store ID.
Upon each Airshare redemption the Merchant’s employee will be required to:
• Enter the Airshare Store ID
o Separate Airshare Store IDs will be provided for each Merchant store location. This is done to help the Merchant with the management of their Airshare Merchant Services. It is the Merchant’s responsibility to distribute as they wish to their employees.
o Ensuring security and appropriate use of the Airshare Store ID(s) is the responsibility of the Merchant.
o Ensuring Merchant account password security and Merchant account information integrity is the responsibility of the Merchant.
• Acknowledge they are an Approved Redeemer for the Merchant
• Key in their name
o 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.
2.02 Authorized Redemptions
Merchant and Merchant employees will only authorize official Airshare redemptions, that is redemptions for which the Giftee has provided the Merchant the Airshare ID generated from the Airshare in the Giftee’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, or another amount to the Merchant or to the Giftee. Any disputes that arise between the Giftee and the Merchant after the redemption are the responsibility of the Merchant’s to solve with the Giftee.
2.04 Automatic Redemptions
After 90 days from time of purchase an Airshare will be automatically redeemed with the then selected Merchant. The Giftee will be notified several times prior to the redemption. Upon the redemption, the Merchant will be paid the amount of the Airshare, less any Fees and Taxes (see Section 3). Airshare will continue to track the value of the remaining value of the Airshare on behalf of the Merchant until it is fully utilized and there is a $0 balance. As the Merchant will have received the funds they are required to provide that value to the Airshare Giftee and comply with all Gift Card laws including, but not limited to laws outlined in the 2009 Card Act and its amendments, and all State laws for the state in which the Merchant operates.
Section 3 — Airshare Fees and Applicable Taxes
3.01 Airshare Fees
In exchange for us 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://portal.airshare.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 the Airshare Merchant Services are due at the beginning of the month for monthly plans or beginning of the year for annual plans. 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, Reversals, Invalidated Payments, or other amounts that you owe to Airshare under this Agreement.
If the Redemption payout is not sufficient to cover the amounts due, you agree that we may debit your Bank Account for the applicable amounts, and/or set-off the applicable amounts against future Redemptions. Upon Airshare’s request, you agree to provide Airshare with all necessary bank account routing and related information and grant Airshare permission to debit amounts due from your Bank Account.
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 Airshares. 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
In connection with your use of the Airshare Merchant Services, you must comply with the Airshare Acceptable Use Policy at http://portal.airshare.com/usepolicy.html.
You agree that you will not:
• (a) Breach this Agreement, or any other agreement that you have entered into with us in connection with the Airshare Merchant Services;
• (b) Violate any federal, state, or local laws, rules, or regulations applicable to your business;
• (c) 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;
• (d) Refuse to cooperate in a legal investigation or audit that may be required by law enforcement;
• (e) Integrate or use any of the Airshare Merchant Services without complying with our requirements;
• (f) Submit any Airshare Redemption for processing through the Airshare Platform which does not represent a bona fide, permissible Redemption as outlined in this Agreement;
• (g) 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 redemptions by your customers.
6.02 Actions by Airshare
If we believe that your Merchant generated Airshares 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 are 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;
• 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
Merchant agrees to indemnify, defend, and hold harmless Airshare, its affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with Airshare or its suppliers in relation to your use of the Airshare Merchant Services; (ii) your use of the Airshare Merchant Services; and/or (iii) your violation of any applicable law, regulation, or Association Rules and requirements.
8.02 LIMITATION OF LIABILITY
AIRSHARE SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE AIRSHARE MERCHANT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF AIRSHARE HAS BEEN ADVISED OF 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 AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO AIRSHARE UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.
8.03 DISCLAIMER OF WARRANTIES
AIRSHARE MERCHANT SERVICES ARE 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 Airshare Merchant Services are a computer network based service which may be subject to outages and delay occurrences. As such, Airshare does not guarantee continuous or uninterrupted access to the Airshare Merchant Services. Merchant further acknowledges that access to the Airshare website or to the Airshare Merchant Services may be restricted for maintenance. Airshare will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Airshare will not be liable for any interruption, outage, or failure to provide the Airshare Merchant Services.
Section 9 - Term and Termination, Data Portability
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.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or 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 contained in the “Legal” 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
This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. 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” tab of the Airshare website. The general terms and conditions for the Airshare Merchant Services will be available at all times on business.airshare.com , 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. If the value of the relief sought is $10,000 or less, you or 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. In cases where an in-person hearing is held, you and/or Airshare may attend by telephone, unless required otherwise by the arbitrator(s).
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 a day where banks are generally open in the United States.
• “Confidential" Information” has the definition ascribed to such term in Section 7.08.
• “Control Panel” is the user interface for the Airshare Merchant Services.
• “Customer(s)” means the customer of the Merchant.
• “Customer Data” means all information that Customer provides in the course of 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 and any Refunds, Chargebacks, Reversals, or other amounts due to Airshare.
• “Reversal” means any payment that Airshare reverses to your customer.
• “Refund” means a refund issued by you through the Airshare Control Panel or through your API access.
• “Reserve” means an amount or percentage of your Payouts that we hold in order to protect against the risk of Reversals, Chargebacks, or any other 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 transfer of funds between you and a third party related to the sale of goods and/or services, or charitable donations.
Effective date: December 1, 2016
Welcome to Airshare ("Airshare," "we," "us" or "our"). Airshare is better to give and receive.
• Our Policy applies to all visitors, users, and others who access the Service ("Users").
1. INFORMATION WE COLLECT
We collect the following types of information.
Information you provide us directly:
• Your username, password and e-mail address when you register for an Airshare account.
• Profile information that you provide for your user profile (e.g., first and last name, picture, phone number). This information allows us to help you or others be "found" on Airshare.
• Airshare preferred Merchants that you select in the Service.
• Communications between you and Airshare. For example, we may send you Service-related emails (e.g., account verification, changes/updates to features of the Service, technical and security notices). Note that you may not opt out of Service-related e-mails.
Finding your friends on Airshare:
• If you choose, you can use our "Find friends" feature to locate other people with Airshare accounts either through (i) your contacts list, (ii) third-party social media sites or (iii) through a search of names and usernames on Airshare.
• If you choose to find your friends through (i) your device's contacts list, then Airshare will access your contacts list to determine whether or not someone associated with your contact is using Airshare.
• If you choose to find your friends (iii) through a search of names or usernames on Airshare then simply type a name to search and we will perform a search on our Service.
• Note about "Invite Friends" feature: If you choose to invite someone to the Service through our "Invite friends" feature, you may select a person directly from the contacts list on your device and send a text or email from your personal account. You understand and agree that you are responsible for any charges that apply to communications sent from your device, and because this invitation is coming directly from your personal account, Airshare does not have access to or control this communication.
• We use third-party analytics tools to help us measure traffic and usage trends for the Service. These tools collect information sent by your device or our Service, including the web pages you visit, add-ons, and other information that assists us in improving the Service. We collect and use this analytics information with analytics information from other Users so that it cannot reasonably be used to identify any particular individual User.
Cookies and similar technologies:
Log file information:
• Log file information is automatically reported by your browser or Airshare App each time you make a request to access (i.e., visit) a web page or app. It can also be provided when the content of the webpage or app is downloaded to your browser or device.
• When you use our Service, our servers automatically record certain log file information, including your web request, Internet Protocol ("IP") address, browser type, referring / exit pages and URLs, number of clicks and how you interact with links on the Service, domain names, landing pages, pages viewed, and other such information. We may also collect similar information from emails sent to our Users which then help us track which emails are opened and which links are clicked by recipients. The information allows for more accurate reporting and improvement of the Service.
• When you use a mobile device like a phone to access our Service, we may access, collect, monitor, store on your device, and/or remotely store one or more "device identifiers." Device identifiers are small data files or similar data structures stored on or associated with your mobile device, which uniquely identify your mobile device. A device identifier may be data stored in connection with the device hardware, data stored in connection with the device's operating system or other software, or data sent to the device by Airshare.
• A device identifier may deliver information to us or to a third party partner about how you browse and use the Service and may help us or others provide reports or personalized content and ads. Some features of the Service may not function properly if use or availability of device identifiers is impaired or disabled.
• Metadata is usually technical data that is associated with User Content. For example, Metadata can describe how, when and by whom a piece of User Content was collected and how that content is formatted.
• Users can add or may have Metadata added to their User Content including a hashtag (e.g., to mark keywords when you post a photo), geotag (e.g., to mark your location to a photo), comments or other data. This makes your User Content more searchable by others and more interactive. If you geotag your photo or tag your photo using other's APIs then, your latitude and longitude will be stored with the photo and searchable (e.g., through a location or map feature) if your photo is made public by you in accordance with your privacy settings.
2. HOW WE USE YOUR INFORMATION
• help you efficiently access your information after you sign in
• remember information so you will not have to re-enter it during your visit or the next time you visit the Service;
• provide personalized content and information to you and others, which could include online ads or other forms of marketing
• provide, improve, test, and monitor the effectiveness of our Service
• develop and test new products and features
• monitor metrics such as total number of visitors, traffic, and demographic patterns
• diagnose or fix technology problems
• automatically update the Airshare application on your device
• Airshare or other Users may run contests, special offers or other events or activities ("Events") on the Service. If you do not want to participate in an Event, do not use the particular Metadata (i.e. hashtag or geotag) associated with that Event.
3. SHARING OF YOUR INFORMATION
We will not rent or sell your information to third parties outside Airshare (or the group of companies of which Airshare is a part) without your consent, except as noted in this Policy.
Parties with whom we may share your information:
• We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Airshare is part of, or that become part of that group ("Affiliates"). Affiliates may use this information to help provide, understand, and improve the Service (including by providing analytics) and Affiliates' own services (including by providing you with better and more relevant experiences).
• We also may share your information as well as information from tools like cookies, log files, and device identifiers and location data, with third-party organizations that help us provide the Service to you ("Service Providers"). Our Service Providers will be given access to your information as is reasonably necessary to provide the Service under reasonable confidentiality terms.
• We may also share certain information such as cookie data with third-party advertising partners. This information would allow third-party ad networks to, among other things, deliver targeted advertisements that they believe will be of most interest to you.
• We may remove parts of data that can identify you and share anonymized data with other parties. We may also combine your information with other information in a way that it is no longer associated with you and share that aggregated information.
Parties with whom you may choose to share your User Content:
• Any information or content that you voluntarily disclose to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set. To change your privacy settings on the Service, please change your profile setting.
What happens in the event of a change of control:
Responding to legal requests and preventing harm:
• We may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also access, preserve and share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves, you and others, including as part of investigations; and to prevent death or imminent bodily harm. Information we receive about you may be accessed, processed and retained for an extended period of time when it is the subject of a legal request or obligation, governmental investigation, or investigations concerning possible violations of our terms or policies, or otherwise to prevent harm.
4. HOW WE STORE YOUR INFORMATION
Storage and Processing:
• Your information collected through the Service may be stored and processed in the United States or any other country in which Airshare, its Affiliates or Service Providers maintain facilities.
• Airshare, its Affiliates, or Service Providers may transfer information that we collect about you, including personal information across borders and from your country or jurisdiction to other countries or jurisdictions around the world. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction.
• We use commercially reasonable safeguards to help keep the information collected through the Service secure and take reasonable steps (such as requesting a unique password) to verify your identity before granting you access to your account. However, Airshare cannot ensure the security of any information you transmit to Airshare or guarantee that information on the Service may not be accessed, disclosed, altered, or destroyed.
• Please do your part to help us. You are responsible for maintaining the secrecy of your unique password and account information, and for controlling access to emails between you and Airshare, at all times. Your privacy settings may also be affected by changes the social media services you connect to Airshare make to their services. We are not responsible for the functionality, privacy, or security measures of any other organization.
5. YOUR CHOICES ABOUT YOUR INFORMATION
Your account information and profile/privacy settings:
• Update your account at any time by logging in and changing your profile settings.
• Unsubscribe from email communications from us by clicking on the "unsubscribe link" provided in such communications. As noted above, you may not opt out of Service-related communications (e.g., account verification, purchase and billing confirmations and reminders, changes/updates to features of the Service, technical and security notices).
How long we keep your User Content:
• Following termination or deactivation of your account, Airshare, its Affiliates, or its Service Providers may retain information (including your profile information) and User Content for a commercially reasonable time for backup, archival, and/or audit purposes.
6. CHILDREN'S PRIVACY
Airshare does not knowingly collect or solicit any information from anyone under the age of 13 or knowingly allow such persons to register for the Service. The Service and its content are not directed at children under the age of 13. In the event that we learn that we have collected personal information from a child under age 13 without parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us.
7. OTHER WEB SITES AND SERVICES
8. HOW TO CONTACT US ABOUT A DECEASED USER
In the event of the death of an Airshare User, please contact us. We will usually conduct our communication via email; should we require any other information, we will contact you at the email address you have provided in your request.
9. HOW TO CONTACT US
Airshare allows Gifters, Giftees and Airshare Merchants to send or post user generated content including, photos, videos, votes, direct messages, and more. The golden rule is a time-tested guideline in posting and sending this content. For added clarity, please read these policies for acceptable use of Airshare.
• Surprise and Delight. The raison d'etre for Airshare is to help people connect in new ways, to make gift giving fun, personal and meaningful, and to help us all be better at giving, and receiving. It is with this spirit that we ask you to use Airshare
• Appropriate Content: Expressive and friendly content is encouraged. Threats, harassment, lewdness, drug use, suggestive acts, disparagement, hate speech, and other displays of bigotry won’t be tolerated in text, photos or videos. Users or businesses engaging in such will have their accounts removed.
• Merchant Content: Only authorized administrators of the Merchant account are permitted to update merchant content. Please make sure your photos, videos and Merchant description are relevant and appropriate to users. Don't use this opportunity to attack your competitors, Airshare or make political statements. Please use this space to make your business shine in order to surprise and delight existing and prospective customers!
• User Profile Content: Be loud and proud about what Merchants you would like to receive in your Airshares. Please refer to Appropriate Content when creating your profile, including your user name.
• Airshare Messaging: Airshare Messaging is a utility to allow Merchants to thank Gifters and welcome Giftees who have given and received Airshares including that Merchant. Outbound messages from the Merchant are limited so as not to “spam” users. Airshare Messaging is meant for this purpose only. This utility is not to be used to resolve disputes.
Merchants selling or providing prohibited items, and engaging in prohibited seller activities will be precluded from enrolling to participate in Airshare Merchant Services and / or will be removed from the Airshare Marketplace in order to maintain a safe buying venue for customers, and a fair selling environment for our merchants.
Please Note: This policy is in addition to, and in no way limits, your other obligations pursuant to the Airshare Merchant Services Agreement. You can reference the Airshare Merchant Services Agreement at http://portal.airshare.com/merchantagreement.html
Prohibited Items List
We expect all Airshare Merchants to ensure that all their products and services are compliant with government regulations at the federal, state, and local level. This includes both the State of California as well as the state in which the customer and the seller reside. Sellers are responsible for keeping aware of any changes to these government regulations and ensuring their products and services remain in compliance.
Sellers providing items including, but not limited to products and services in this list are precluded from enrolling to participate in Airshare Merchant Services;
• Adult Only products and services which include, but are not limited to pornography in any form of media, adult novelty products, sexual aids or toys
• Animal and Wildlife Products. Household pet stores and pet food suppliers can enroll to participate in Airshare Merchant Services. Merchants who sell or provide products or services which include, but are not limited to the following are precluded from enrolling to participate in Airshare Merchant Services: Animal parts, pelts, skins, mounted specimens, taxidermy, fur, ivory, bone, organs, claws, teeth, shells, eggs, insects, and bear products are all prohibited.
• Artifacts, grave-related items, and Native American arts and crafts
• Counterfeit items
• Currency and stamps
• Credit or debit cards
• Drugs and drug paraphernalia including e-cigarettes, and vaporizers used for marijuana
• Embargoed goods from prohibited countries currently listed by the U.S. Office of Foreign Assets Control
• Endangered or Threatened Species. Any Merchants providing products derived from endangered or threatened species as identified by the United States Fish & Wildlife Service are prohibited. Examples include, but are not limited to, ivory, shark, tiger, whale, rhinoceros, dolphin, staghorn, elkhorn, coral, marine, and tortoise products.
• Firearms and Weapons (including but not limited to switchblade knives, butterfly knives, guns, gun parts, gun kits, ammunition, mace, pepper spray, black powder, stun guns and explosives)
• Fireworks & pyrotechnical devices
• Government documents, IDs, and licenses including those from transportation industries
• Human remains and body parts
• Illegal and/or prescription drugs - illegal drug paraphernalia, or materials describing how to make illegal drugs
• Items encouraging illegal activity – examples include an eBook describing how to create methamphetamine
• Lock picking devices
• Lottery tickets
• Mailing lists and personal information
• Manufacturers' coupons
• Medical devices – examples include contact lenses, pacemakers, and surgical instruments
• Military ordinance
• Multi-level marketing, pyramid, and matrix programs
• Offensive material – examples include ethnically or racially offensive material and Nazi memorabilia
• Pawn shops
• Police-related items
• Prohibited services
• Recalled items
• Sexuality – any products associated with sexuality including but not limited to toys, vibrators, lubricants, intimate care, furniture, condoms, contraception, sexual aids, or sensual/romance.
• Shipping-related items such as U.S. Postal Service (USPS) mailbags
• Signal jamming (a.k.a. signal blockers) designed to block, jam, or interfere with authorized radio communications such as cell phones, GPS, police radar, and Wi-Fi as specified by U.S. Law. More information can be found on the FCC website at http://www.fcc.gov/encyclopedia/jammer-enforcement
• Stolen property and property with removed serial numbers
Prohibited Seller Activities
These prohibited seller activities are established to maintain a safe buying venue for customers and a fair selling environment for our merchants. Failure to comply with the terms of this policy can result in the permanent removal from the Airshare Marketplace.
1. Attempts to Divert Transactions or Customers
Any attempt to circumvent the established Airshare Marketplace sales process or to divert Airshare customers to another website or mobile App is prohibited. Specifically, any emails, hyperlinks advertisements, marketing messages, etc. that lead, prompt, or encourage Airshare customers to leave the Airshare App are prohibited.
2. Unauthorized & Improper Seller Store Names
The Seller Store Name (identifying a seller’s business entity on Airshare Marketplace) must be a name that: accurately identifies the seller; is not misleading; and the seller has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person; cannot be identical or similar to another company’s name protected by trademark law).
3. Direct Email Addresses
Customers and sellers may communicate with one another via the Airshare Messaging function, which assigns a unique Airshare Marketplace generated email addresses to both parties. Sellers are prohibited from providing or soliciting direct, non-Airshare Marketplace generated email addresses on Airshare Marketplace or in correspondence through the Airshare Messaging Service function.
4. Operating Multiple Seller Accounts
Operating and maintaining multiple seller accounts is prohibited. If you have a legitimate business need for a second account, you can apply for an exception to this policy.
5. Misuse of the Airshare Marketplace
All Merchants are able to access the functions that are provided by Airshare Marketplace via the Airshare Merchant Portal. If a Merchant is misusing or making excessive or unreasonable use of the Airshare Marketplace services, including but not limited to creating duplicate Merchant listings, Airshare may in its sole discretion restrict or block the Merchant’s access to product feeds or any other functions that are being misused until the Merchant stops its misuse.