E-Sign Disclosure and Consent
This E-Sign Disclosure and Consent (“E-Sign Consent”) applies to all records, notices, statements, communications, and other items for all services provided to you through the Services and in connection with your relationship with us (collectively, “Communications”).
Scope of Communications to Be Provided in Electronic Form. You agree that we may provide you with any Communications that we may choose to make available in electronic format, to the extent allowed by law, and that we may discontinue sending paper Communications to you, unless and until you withdraw your consent as described below. Your consent to receive electronic communications and transactions includes, but is not limited to:
- All legal and regulatory disclosures and communications associated with the Services.
- Notices or disclosures about a change in the terms of the Site.
- Privacy policies and notices.
Method of Providing Communications to You in Electronic Form.
All Communications that we provide to you in electronic form will be provided either (1) via e-mail, (2) by access to a web site that we will designate in an e-mail notice we send to you at the time the information is available, (3) to the extent permissible by law, by access to a web site that we will generally designate in advance for such purpose.
How to Withdraw Consent.
ou may withdraw your consent to receive Communications in electronic form by calling us at 1-844-335-3935. At our option, we may treat your provision of an invalid e-mail address, or the subsequent malfunction of a previously valid e-mail address, as a withdrawal of your consent to receive electronic Communications. Any withdrawal of your consent to receive electronic Communications will be effective only after we have a reasonable period of time to process your withdrawal.
How to Update Your Records.
It is your responsibility to provide us with true, accurate and complete e-mail address, contact, and other information related to the usage on the Site, and to maintain and update promptly any changes in this information. You can update information (such as your e-mail address) through our Site or by calling us at 1-844-335-3935.
Hardware and Software Requirements.
In order to access, view, and retain electronic Communications that we make available to you, you must have:
- Sufficient electronic storage capacity on your computer’s hard drive or other data storage unit;
- An e-mail account with an Internet service provider and e-mail software in order to participate in our electronic Communications programs;
- A personal computer, operating system and telecommunications connections to the Internet capable of receiving, accessing, displaying, and either printing or storing Communications received from us in electronic form via a plain text-formatted e-mail or by access to our web site using one of the browsers specified below.
Requesting Paper Copies.
We will not send you a paper copy of any Communication which is available electronically from us, unless you request it, or we otherwise deem it appropriate to do so. You can obtain a paper copy of an electronic Communication by printing it yourself or by requesting that we mail you a paper copy, provided that such request is made within a reasonable time after we first provided the electronic Communication to you. To request a paper copy, call us at 1-844-335-3935. We may charge you a reasonable service charge, of which we have provided you prior notice, for the delivery of paper copies of any Communication provided to you electronically pursuant to this authorization. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically.
Communications in Writing.
All Communications in either electronic or paper format from us to you will be considered “in writing.” You should print or download for your records a copy of this disclosure and any other Communication that is important to you.
You acknowledge and agree that your consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that you and we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
State Privacy Laws.
We also comply with state privacy laws to the extent that they apply.
Termination / Changes.
We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide you with notice of any such termination or change as required by law.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and CLINK!Gift, and describe the entire liability of CLINK!Gift and its vendors and suppliers and your exclusive remedy with respect to your access and use of the Service. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
CLINK!Gift's failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. CLINK!Gift will not be responsible for failures to fulfill any obligations due to causes beyond its control. In the event of a conflict between this Agreement and any other CLINK!Gift agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Headings in this Agreement are included for convenience only, and shall not be considered in interpreting this Agreement.
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or CLINK!Gift exclusively in the U.S. District Court for the Southern District of New York or a state court located in New York County, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of New York will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
If anyone brings a claim against us related to your actions, content or information on CLINK!Gift, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. Although we provide rules for user conduct, we do not control or direct users' actions on CLINK!Gift and are not responsible for the content or information users transmit or share on CLINK!Gift. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on CLINK!Gift. We are not responsible for the conduct, whether online or offline, of any user of CLINK!Gift.
ARBITRATION AGREEMENT AND WAIVER OF JURY TRIAL: PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. UNLESS YOU EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO 6 COURT, INCLUDING THE RIGHT TO HAVE A JURY TRIAL, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED FOR IN THE ARBITRATION RULES), AND TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS OR IN ANY CONSOLIDATED ARBITRATION PROCEEDING OR AS A PRIVATE ATTORNEY GENERAL. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE IN ARBITRATION.
Agreement to Arbitrate. You and we (defined below) agree that any Dispute (defined below) will be resolved by Arbitration. This agreement to arbitrate is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the substantive law of the State of Minnesota (without applying its choice-of law rules).
What Arbitration Is. "Arbitration" is a means of having an independent third party resolve a Dispute. A "Dispute" is any claim or controversy of any kind between you and us. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the Gift and whether or not the Gift is provided to you, based on any legal or equitable theory (contract, tort, or otherwise) and regardless of the type of relief sought (i.e., money, injunctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim based upon a federal or state constitution, statute, ordinance, regulation, or common law, and any issue concerning the validity, enforceability, or scope of this arbitration agreement.
For purposes of this arbitration agreement, the terms "you" and "your" include your heirs, guardian, personal representative, or trustee in bankruptcy. The terms "we," "our," and "us" mean the Bank and include the employees, officers, directors, members, managers, attorneys, affiliated companies, predecessors, and assigns of the Bank as well as the marketing, servicing, and collection representatives and third party service providers of the Bank, including, without limitation, CLINK!Gift and any of its employees, officers, or directors.
How Arbitration Works. If a Dispute arises, the party asserting the claim or demand must initiate arbitration, provided you or we may first try to resolve the matter informally or through customary business methods, including collection activity. The party filing an arbitration complaint must choose either of the following arbitration firms for initiating and pursuing arbitration: the American Arbitration Association ("AAA") or JAMS, The Resolution Experts. If the parties mutually agree, a private party, such as a retired judge, may serve as the arbitrator. If you claim you have a Dispute with us, but do not initiate arbitration or select an arbitrator, we may do so. You may obtain copies of the current rules of each of the arbitration firms and forms and instructions for initiating arbitration by contacting them as follows:
American Arbitration Association
335 Madison Avenue
New York, NY 10017
Web site: www.adr.org
Telephone (800) 778-7879
JAMS, The Resolution Experts
1920 Main Street, Suite 300
Los Angeles, CA 92614
Web site: www.jamsadr.com
Telephone (949) 224-1810 or (800) 352-5267
In the event both AAA and JAMS are unavailable to decide a Dispute, the parties agree to select another neutral party experienced in financial matters to decide the Dispute. If such an independent arbitrator cannot be found, the parties agree to submit any Dispute to a state or federal judge, sitting without a jury, for resolution on an individual and not a class-wide basis.
The policies and procedures of the selected arbitration firm will apply provided such policies and procedures are consistent with this arbitration agreement. To the extent the arbitration firm's rules or procedures are different than the terms of this arbitration agreement, the terms of this arbitration agreement will apply.
What Arbitration Costs. No matter which party initiates the arbitration, we will advance or reimburse filing fees and other costs or fees of arbitration, provided each party will be initially responsible for its own attorneys' fees and related costs. Unless prohibited by law, the arbitrator may award fees, costs, and reasonable attorneys' fees to the party who substantially prevails in the arbitration.
Location of Arbitration. Unless you and we agree to a different location, the arbitration will be conducted in the county where you reside.
Waiver of Rights. You are waiving your right to a jury trial, to have a court decide your Dispute, to participate in a class action lawsuit, and to certain discovery and other procedures that are available in a lawsuit. You and we agree that the arbitrator has no authority to conduct class-wide arbitration proceedings and is only authorized to resolve the individual Disputes between you and us. The validity, effect, and enforceability of this waiver of class action lawsuit and class- wide arbitration, if challenged, are to be determined solely by a court of competent jurisdiction and not by the AAA, JAMS, or an arbitrator. If such court refuses to enforce the waiver of class-wide arbitration, the Dispute will proceed in court and be decided by a judge, sitting without a jury, according to applicable court rules and procedures, and not as a class action lawsuit. The arbitrator has the ability to award all remedies available by statute, at law, or in equity to the prevailing party.
Applicable Law and Review of Arbitrator's Award. The arbitrator shall apply applicable federal and Minnesota substantive law and the terms of this Agreement. The arbitrator must apply the terms of this arbitration agreement, including without limitation the waiver of class-wide arbitration. The arbitrator shall make written findings and the arbitrator's award may be filed with any court having jurisdiction. The arbitration award shall be supported by substantial evidence and must be consistent with this Agreement and with applicable law, and if it is not, it may be set aside by a court. The parties shall have, in addition to the grounds referred to in the Federal Arbitration Act for vacating, modifying, or correcting an award, the right to judicial review of (a) whether the findings of fact rendered by the arbitrator are supported by substantial evidence and (b) whether the conclusions of law are erroneous under the substantive law of Minnesota and applicable federal law. Judgment confirming an award in such a proceeding may be entered only if a court determines that the award is supported by substantial evidence and is not based on legal error under the substantive law of Minnesota and applicable federal law.
Survival. This arbitration provision shall survive: (1) cancellation, payment, charge-off, or assignment of this Agreement; (2) the bankruptcy of any party; and (3) any transfer, sale, or assignment of this Agreement, or any amounts owed under this Agreement, to any other person or entity.
Right to Opt-Out. If you do not wish to agree to arbitrate all Disputes in accordance with the terms and conditions of this section, you must advise us in writing at the following address by either hand delivery or a letter postmarked within thirty (30) days following the date you enter into this Agreement. You may opt-out without affecting the Gift.
WE TRY TO KEEP CLINK!GIFT UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING CLINK!GIFT AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT CLINK!GIFT WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT CLINK!GIFT WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. CLINK!GIFT IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, IF YOU ARE A NEW YORK RESIDENT, YOU WAIVE NEW YORK CIVIL CODE §51, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR CLINK!GIFT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR CLINK!GIFT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, CLINK!GIFT'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for everyone, but we also strive to respect local laws. The following provisions apply to users and non-users who interact with CLINK!Gift outside the United States:
You consent to having your personal data transferred to and processed in the United States.
If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated Nationals you will not engage in commercial activities on CLINK!Gift (such as advertising or payments) or operate a Platform application or Site. You will not use CLINK!Gift if you are prohibited from receiving products, services, or software originating from the United States.
By "CLINK!Gift" or” CLINK!Gift Services” we mean the features and services we make available, including through (a) our Site at www.clink.nyc or www.clinkgift.com By "CLINK!Gift" or” CLINK!Gift Services” we mean the features and services we make available, including through (a) our Site at www.clink.nyc or www.clinkgift.com and any other CLINK!Gift branded or co-branded Sites (including sub-domains, international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins such as the Like button, the GiftPlus™ button and other similar offerings; and (d) other media, brands, products, services, software (such as a toolbar), devices, or networks now existing or later developed. CLINK!Gift reserves the right to designate, in its sole discretion, that certain of our brands, products, or services are governed by separate terms and not this Terms of Service.
By "Platform" we mean a set of APIs and services (such as content) that enable others, including application developers and Site operators, to retrieve data from CLINK!Gift or provide data to us.
By "information" we mean facts and other information about you, including actions taken by users and non-users who interact with CLINK!Gift.
By "content" we mean anything you or other users post, provide or share using CLINK!Gift Services.
By "data" or "user data" or "user's data" we mean any data, including a user's content or information that you or third parties can retrieve from CLINK!Gift or provide to CLINK!Gift through Platform.
By "post" we mean post on CLINK!Gift or otherwise make available by using CLINK!Gift.
By "use" we mean use, run, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.
By "application" we mean any application or Site that uses or accesses Platform, as well as anything else that receives or has received data from us. If you no longer access Platform but have not deleted all data from us, the term application will apply until you delete the data.
If you are a resident of or have your principal place of business in the US or Canada, this Statement is an agreement between you and CLINK!Gift, LLC. References to “us,” “we,” and “our” mean either CLINK!Gift, Inc.
This Statement makes up the entire agreement between the parties regarding CLINK!Gift, and supersedes any prior agreements.
If any portion of this Statement is found to be unenforceable, the remaining portion will remain in full force and effect.
If we fail to enforce any of this Statement, it will not be considered a waiver. Any amendment to or waiver of this Statement must be made in writing and signed by us.
You will not transfer any of your rights or obligations under this Statement to anyone else without our consent.
All of our rights and obligations under this Statement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
Nothing in this Statement shall prevent us from complying with the law.
This Statement does not confer any third party beneficiary rights.
We reserve all rights not expressly granted to you.
You will comply with all applicable laws when using or accessing CLINK!Gift.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by CLINK!Gift without restriction.
If any provision of this Agreement is held to be invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining provisions of this Agreement.
CLINK!Gift reserves the right to take steps we believe are reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement. You agree that CLINK!Gift has the right, without liability to you, to disclose any registration data and other Account information to law enforcement authorities, government officials, or a third parties, as CLINK!Gift believes is reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement.
CLINK!Gift is not responsible for any typographical errors.
We reserve the right to modify these Terms or policies relating to the Services at any time, effective upon posting on the Site. You are responsible for regularly reviewing these Terms. By using this Site, you agree that the posting of new or revised terms and conditions on the Site will constitute adequate and constructive notice to you of any and all revisions and changes. Continued use of the Service after any such changes or after explicitly accepting the new Terms upon logging into the site shall constitute your consent to such changes.