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Priceless Terms of Use

IMPORTANT LEGAL INFORMATION: THESE TERMS OF USE REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT.  PLEASE READ THE ENTIRE AGREEMENT CAREFULLY.

Introduction

 

Welcome to Priceless.com.  Traina Interactive Corp., a Mastercard company (“Mastercard”) provides Priceless.com (the “Site”) for your personal, informational, educational and entertainment use only. The Site provides you with access to a Priceless world of experiences, promotional offers, card benefits and relevant content. By accessing the Site, you agree to these terms of use and any Additional Terms (defined below), as may be amended from time to time (collectively referred to as the “Terms of Use”). Please read these Terms of Use carefully before using the Site.  This Terms of Use sets forth the terms applicable to your use of the Site. BY USING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE LEGALLY BOUND BY THE TERMS OF USE. IF YOU HAVE ANY QUESTIONS ON THE TERMS OF USE, YOU SHOULD CONSULT WITH A LAWYER BEFORE USING THIS SITE. If you do not agree to the Terms of Use, do not access the Site or use the Site.

 

If you do not agree to this Terms of Use, do not access the Site or use the Site. In these Terms of Use, the words “you” and “your” mean the person who has accessed the Site, as defined below. The words “we,” “us” and “our” mean Mastercard.  In some instances, both these Terms of Use and separate guidelines, rules or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Site or to a service or product offered via the Site, including, without limitation, terms and conditions that apply to experiences sold on the Site (and are typically posted via a link on an experience’s page) (in each such instance and collectively “Additional Terms”). To the extent there is a conflict between these Terms of Use and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Additionally, certain features and services made available through the Site from time to time may be governed by different terms of use. By using the Site, you acknowledge and accept the Site’s Privacy Notice  and consent to the collection and use of your data in accordance with our Privacy Notice.

 

Table of Contents

 

  1. The Site
  2. Accounts, Security and Passwords
  3. Electronic Contracting
  4. Right to Use Site Content
  5. Changes to the Site and Terms of Use
  6. Termination
  7. Purchases
  8. Returns/Cancellations/Exchanges
  9. Availability of an Offer; Errors
  10. Benefits
  11. Intellectual Property Rights
  12. Communications
  13. Copyright Complaints
  14. Interactive Forums and Groups and Feedback User Submissions and Conduct
  15. Submissions or Feedback
  16. Third-Party Content and Links to Other Websites
  17. Merchant and Merchant Offers
  18. Contests and Sweepstakes
  19. Third Party Content and Links to Other Websites
  20. Privacy Notice
  21. Indemnification
  22. Disclaimer of Warranties
  23. Disclaimer of Damages and Limitation of Liability
  24. Inapplicability of Terms of Use to any Mastercard Payment Card Cardholder Agreement
  25. Force Majeure Delays and Cancellations
  26. Site Operator
  27. Dispute Resolution
  28. Miscellaneous

 

1.              The Site

The Site is a benefit for Mastercard cardholders. We are bringing to you a Priceless “World” of adventures, offers, experiences and other benefits. Benefits of the Site may include the ability to purchase one of a kind offers and experiences and personalized information about your Mastercard payment card and the benefits associated with it. Email reminders can be set to keep you up to date on some of our new offers and experiences. Certain offers will be exclusive to certain Mastercard card cardholders only. Your Mastercard card type (e.g., World or World Elite Mastercard) and issuer can be identified on the front or back of your Mastercard card. The following conditions apply to your use of the Site: (i) your Mastercard card is in good standing; and (ii) you must be at least eighteen (18) years of age or twenty-one (21) years of age in Puerto Rico. If you have any questions or issues about whether a Mastercard card can be used on this Site, please contact Customer Service using the information listed below.

 

By consenting to the Terms of Use, you agree that: (i) you will provide accurate, current and complete information to Mastercard, including, but not limited to, information required to register for the Site; (ii) you will not use the Site to reproduce, duplicate, copy, sell, resell, distribute, publish or exploit for any commercial purpose the software, content, information, data, offers, experiences, products or services provided by Mastercard or obtained through the Site without obtaining the express, prior written consent of Mastercard. This restriction includes any attempt to incorporate any information from the Site into any other directory, product, or service; (iii) you will provide for your own access to the Site, including, but not limited to, obtaining and maintaining all telephone, computer hardware and software, and other equipment and paying all related charges; (iv) you will not use the Site in any manner that adversely affects the availability of its resources to, or enjoyment by, other users or in any manner that could damage, disable, overburden or impair Mastercard’s or its Site providers’ servers or networks; (v) you will not use the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful or otherwise prohibited by the Terms of Use; (vi) 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; (vii) you will not collect or store personal data about other users; (viii) you will not use the Site for any commercial purpose not expressly approved by Mastercard in writing; (ix) you will not upload, post, email, or otherwise transmit any advertising or promotional materials, including, without limitation, “junk mail,” “surveys,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or unauthorized communication; and (x) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files or programs that might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment. Your access to the Site may be terminated immediately in Mastercard’s sole discretion, with or without notice, if you fail to comply with any provisions of this Terms of Use and/or Additional Terms, or for any other reason, or no reason.

 

You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals List published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce. You agree that you do not have any rights in this Site and Mastercard will have no liability to you if this Site is discontinued or your ability to access the Site is terminated.

 

2.              Accounts, Security and Passwords

Certain areas of the Site may require registration or may otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site.

 

If the Site requires you to sign-up for an account or otherwise submit information, you must complete the specified 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 Mastercard 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. Mastercard 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.

 

You are entirely responsible for maintaining the security and confidentiality of your account, username and password, and you are responsible for all activities and conduct by you or anyone else through your account. You agree to notify Mastercard immediately of any unauthorized use of your account or any other breach of security. Neither Mastercard nor its service providers or agents will be liable for any loss or damages of any kind that may arise as a result of someone else using your password or account, either with or without your knowledge; however, you may be held liable for any losses incurred by Mastercard or another party due to someone else using your account or password.

 

3.              Electronic Contracting

Your use of the Site requires you to have the ability to enter into agreements, and to make transactions, electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS. YOU ACKNOWLEDGE FURTHER THAT YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, TERMS OF USE, ADDITIONAL TERMS, POLICIES, CONTRACTS AND APPLICATIONS, AND ANY AMENDMENTS TO ANY OF THE FOREGOING.

 

4.              Right to Use Site Content

We are granting you a limited, non-exclusive, revocable right and license for you to view, share, print or download any Content, as defined below, from the Site solely for your own personal use. You are not granted the right to license, republish, distribute, copy, assign, sublicense, transfer, sell, prepare or create any derivative works or other non-personal use of any Content on the Site. No part of any Content may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use. You may not access or use the Site in any way that could or is intended to damage or impair the Site, or any server or network underlying the Site, or interfere with anyone else's use and enjoyment of the Site. You are also granted a limited, revocable, non-transferable, non-sublicensable, and non-exclusive right and license to create a hyperlink to the Site or its any Content therein so long as the link does not portray Mastercard, or its products or services in a false, misleading, derogatory, or otherwise offensive manner or imply a sponsorship or endorsement of your site, page or content by Mastercard.

 

You may not use automated systems (e.g., robots, spiders, etc.) or a computer system to access, including to search for or scrape the Site, including, to reserve, buy, or otherwise obtain tickets, discount codes, promotional codes, vouchers, credits, gift cards, or any other experiences or items available on the Site. You agree not to collect personally identifiable information of other users of the Site or to sell or otherwise exploit that information in any manner. Except for the limited rights expressly granted herein, all right, title and interest in and to the Site and all Content contained therein are reserved and owned by Mastercard.  Further, you agree not to: (i) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (ii) access, reload, or refresh transactional experience, event or ticketing pages, or make any other request to transactional servers, more than once during any three-second interval; (iii) request more than 1,000 pages of the Site in any twenty-four (24)-hour period, whether alone or with a group of individuals; (iv) decode, decrypt, modify, or reverse engineer any tickets or underlying algorithms or barcodes used on or in production of tickets or the Site; or (v) use bot technology to search for, reserve, or purchase tickets to experiences through the Site; for the avoidance of doubt, this specifically prohibits you from using automated ticket purchasing software on the Site, and prohibits you from circumventing any security measure, access control system, or other technological control or measure on the Site that is used to enforce posted experience ticket purchasing limits or to maintain the integrity of posted online ticket purchasing order rules. 

 

You may not in using the Site: (a) gain or attempt to gain unauthorized access to Mastercard’s services or systems; (b) use or attempt to use Mastercard’s services or systems in any manner that is not expressly authorized by Mastercard; (c) disrupt, damage or impede the operations of Mastercard’s services or systems; or (d) circumvent or attempt to circumvent Mastercard’s security mechanisms.

 

MASTERCARD RETAINS THE RIGHT TO DENY ACCESS TO THIS SITE TO ANYONE WITHOUT NOTICE AT ITS COMPLETE DISCRETION FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FOR VIOLATION OF ANY OF THESE TERMS OF USE, INCLUDING ANY USE RIGHTS.

 

5.              Changes to the Site and Terms of Use

Mastercard reserves the right to change or modify Content, materials or information appearing on or in connection with this Site, including these Terms of Use, or discontinue any benefit, offer experience or other content at any time without notice to you. Mastercard may at any time revise these Terms of Use by updating the link where these Terms of Use are posted or by providing further information during the registration or by messaging you. You are responsible for regularly reviewing the Terms of Use. Any changes or revisions are effective immediately upon posting. Continued use of or accessing the Site following any such changes constitutes your acceptance of such changes.

 

Mastercard reserves the right to charge fees at any time for access to all or portions of the Site with your advance acknowledgement of the charge.

 

6.              Termination

Mastercard may terminate your registration or restrict your access to the Site for any reason at any time.

7.              Purchases

You may purchase Offers, as defined below, through the Site or through a merchant’s site using a Mastercard card. All purchases of Offers are subject to availability. All Offers are subject to the applicable taxes and fees, including, without limitation, any currency exchange charges, shipping costs or similar fees and taxes. Additionally, Offers processed in locations outside the country in which your Mastercard card was issued may be subject to foreign transaction fees assessed by your card issuer.  You are responsible for all such fees, charges and taxes related to your purchase. For questions related to foreign transaction fees and when they may apply, contact the bank that issued your Mastercard card. Mastercard reserves the right to modify the price of any and all Offers at any time. Please note that certain Offers can be gifted to others. Gift orders will be sent to the gift recipient on your behalf at the email address or shipping address, as applicable, identified by you during checkout.  By completing a gift order, you confirm that you have sought permission from your gift recipient to share their contact information with Mastercard and to send the gift to them in the manner described during checkout.  Certain Offers are not transferable by their Offer terms and conditions. Any Offers that are non-transferable and are transferred by you can be revoked by Mastercard or the applicable merchant or alliance partner at any time.  With respect to goods purchased on the Site, the risk of loss for and title to products purchased on the Site passes to you upon delivery to the carrier. 

 

By purchasing any Offers or any other products or services offered for purchase on the Site, you acknowledge and agree that your Mastercard card is being charged by the payment process of Mastercard or its affiliate or service provider, or by the provider of the Offer in the case of Offers purchased directly from the Offer provider. 

 

8.              Returns/cancellations/exchanges

Each Offer will contain a description of such Offer’s return, cancellation or exchange terms and conditions. You are responsible for understanding this information prior to purchase. Your confirmation email once you have purchased an Offer will also set forth the return, cancellation and exchange terms and conditions of such Offer. In the event that neither the Offer nor the confirmation email contains such information such Offer should be considered non-cancellable, not subject to returns, or exchanges and your purchase is non-refundable.

 

9.              Availability of an Offer; Errors

Mastercard’s acknowledgement of an order for any of any of our Offers means only that your order request has been received and does not constitute acceptance of an order or that the availability of an Offer has been confirmed. While we use reasonable efforts to describe and display the Offers accurately on the Site, we do not guarantee the accuracy or completeness of any information related to any Offer, including prices, product images, specifications, and availability. Mastercard reserves the right to change, modify or update information and to correct errors, inaccuracies or omissions at any time with or without prior notice. If we determine that there were inaccuracies in the Offer information or other Site errors in connection with your order, including with respect to pricing or availability, we reserve the right, in our discretion, to cancel your order and notify you of such cancellation via email or to contact you for further instructions.  Additionally, any Offers may be discontinued at any time for any reason with or without notice.

 

10.           Benefits

The Site may contain information about certain benefits provided to you by or through the financial institution that issued your Mastercard payment card.  For questions related to those benefits, please consult the financial institution that issued your Mastercard payment card.  The Site may also contain information about certain benefits made available to you by an affiliate of Mastercard. Benefits may be subject to Additional Terms. The affiliate named in the Additional Terms applicable to such benefit shall be the party responsible for such benefit.  While we aim to provide accurate information with respect to these benefits, we are not responsible for any errors or inaccuracies in the benefit details, terms and conditions or your eligibility for any such benefit. 

 

11.           Intellectual Property Rights

The Content is protected by applicable intellectual property laws and all right, title and interest in the Content is owned by Mastercard or used by Mastercard under a license or with permission. All text, formatting, including, without limitation, the selection, coordination and arrangement of materials on the Site, and the images, graphics, animation, tools, widgets, applications, commercials, videos, music, sounds, articles, copy, creative materials, photos, trademarks, service marks, trade names, and logos, and other materials and information on this Site (collectively, “Content”) are subject to the intellectual property rights of Mastercard, its subsidiaries and affiliates, and their respective licensors and licensees. Except to the extent permitted by law, Content may not be copied, reverse engineered, decompiled, disassembled, modified, reposted to other websites, framed, deep linked to, changed, or otherwise distributed, redistributed, licensed, sublicensed or transferred in any form by you. Nothing contained on the Site shall be construed as granting, by implication, estoppel or otherwise, any license or right to make commercial use of any Content without Mastercard’s prior written permission. The trademarks, logos, trade names and service marks, whether registered or unregistered (collectively, the “Trademarks”) displayed on the Site are Trademarks of Mastercard and its third party alliance partners. Nothing contained on the Site should be construed as granting by implication or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of Mastercard or such third party that may own the Trademark.

 

Any unauthorized commercial use of these materials will violate Mastercard’s intellectual property rights and will be subject to Mastercard's full legal rights and remedies.

 

12.           Communications

You acknowledge and agree that Mastercard will send you information and communications in connection with the Site. Such communications may be sent to your registered email address or to any other contact details you have provided to Mastercard in connection with the Site.

 

13.           Copyright Complaints

In operating the Site, Mastercard may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party websites. As a result, third party materials that Mastercard does not own or control may be transmitted, stored, accessed or otherwise made available using the Site. Mastercard has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site and has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of Mastercard or of a third party, or that has otherwise violated any intellectual property laws or regulations, or these Terms of Use. If you believe any material available through the Site infringes a copyright, you should notify Mastercard using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). Mastercard will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. You should address infringement notices under the DMCA to: Copyright Agent, Mastercard, 2000 Purchase Street, Purchase, NY 10577, Attn: Law Department or to copyrightagent@mastercard.com.

 

Please provide the following notice:

1. Identify the copyrighted work or other intellectual property that you claim has been infringed;

2. Identify the material on the Site that you claim is infringing, with enough detail so that Mastercard may locate it on the Site;

3. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

4. A statement by you declaring under penalty of perjury that (a) the above information in your notice is accurate, and (b) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;

5. Your address, telephone number, and email address; and

6. Your physical or electronic signature.

 

Mastercard may give notice to its users of any infringement notice by means of a general notice on any of its websites or apps, electronic mail to a user's e-mail address in its records, or by written communication sent by first-class mail to a user's physical address in its records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

 

1. Your physical or electronic signature;

2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;

3.A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

4.Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

 

Without limiting Mastercard’s other rights, Mastercard may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website or app owned or operated by Mastercard.

 

14.           Interactive Forums and Groups and Feedback User Submissions and Conduct

As a user of the Site, you may submit your comments, which may consist of textual content and potentially photos, videos, images audio files, other types of content and links to such content if allowed by the Site (collectively, referred to as “User Submissions”). You will be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: the User Submission is your original work and/or that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Mastercard to use any and all User Submissions in any and all media now known or hereinafter invented without territorial or time limitations and without compensation, and have all necessary consents to collect, use and disclose any personally identifiable information, images, materials, information or likeness contained or displayed in any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Site and this Agreement. You agree that you will not submit as part of any User Submission any material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner and the necessary consents from any individuals whose personally identifiable information is contained in such material to post the material and to grant Mastercard all of the license rights granted herein. Furthermore, you warrant and represent that you will disclose the existence of any patent registrations or pending applications held by you which relate in any way to your User Submission.

 

You acknowledge and agree that no confidential relationship or obligation of secrecy or confidentiality is established between you and Mastercard regarding the User Submission, despite any statement or legend to the contrary on the User Submission and any related materials.

 

15.           Ownership And Use of User Submissions

By making a User Submission, you understand that you are granting Mastercard a worldwide, perpetual, royalty-free, fully-paid, irrevocable, sublicensable, transferrable, non-exclusive license to use, modify, and/or distribute the User Submission (including under copyright, patent, and trademark law), including the right to edit, change, and create derivative works, and any concepts or ideas contained in the User Submission, including the documents, artwork, statements, drawings, outlines, proofs, displays, photographs, footage, outtakes, musical scores, audio and video footage, discs, whether in print or electronic form, produced or created by you as part of the User Submission. The license you are granting to Mastercard includes the right of Mastercard and its designees to reproduce the User Submission, prepare other works using the User Submission, combine your User Submission with other works, and alter, translate, distribute copies, display, perform, license and apply for copyright registration of the transformed User Submission in the name of Mastercard throughout the world in perpetuity in any media that now exists or may exist in the future. For example, the above grant permits Mastercard and its designees to use only certain portions of your User Submission, rerecord or modify any audio tracks or visual images you provide, rewrite the User Submission, and/or incorporate other materials, either created by Mastercard or licensed from others, with your Submission. If we create other works using the User Submission, those works will be owned by us and may be used in accordance with these guidelines, and shall not be subject to your approval.  In order to further effectuate the rights and license that you grant to Mastercard to your User Submission, you also grant to Mastercard, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Submission, without any obligation or remuneration to you.  

 

By making a User Submission, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the Submission or any photograph(s), footage, illustrations, statements or other work contained in the Submission. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 15. You are also agreeing to appoint Mastercard as your irrevocable attorney-in-fact with respect to the User Submission, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that Mastercard can use the User Submission that you are licensing in any way Mastercard sees fit to own and protect the rights in any derivative works created from your User Submission, and to have the User Submission removed from any other website or forum.

 

Upon request of Mastercard, you shall execute and deliver such additional instrument of license, as may be solely deemed by Mastercard, reasonably necessary to establish Mastercard's ability to use the User Submission as it sees fit and that “Moral Rights of Authors” are waived under these Terms and Conditions. Should Mastercard fail to request the said license instrument as stated, that shall not be deemed a waiver of Mastercard's rights and Mastercard may at a later time request the instrument.

 

16.           Submissions or Feedback

From time to time, we may ask you for your feedback on the Site and products and/or services. Any communication or material you transmit or post will: (a) be treated as non-confidential and non-proprietary by Mastercard, (b) become the property of Mastercard and Mastercard shall exclusively now and hereinafter own all rights, title and interest therein, and (c) be used without restriction by Mastercard licensees and affiliates at its sole discretion without any obligation, compensation or other liability to you. Such use may be for any purpose whatsoever, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting whole or in part, in any medium and in any manner, now known or later developed, on this Site or otherwise and Mastercard shall be under no obligation to respond to any such communication. Notwithstanding the foregoing, Mastercard maintains a policy of not accepting or considering any creative ideas, suggestions or materials from the public regarding its products and services (collectively, “Submissions”), and therefore, you should not make any Submissions to Mastercard in any communications through this Site or otherwise. Nonetheless, if you do send us a Submission, despite this request not to do so, then such Submission shall immediately become the property of Mastercard, you hereby assign such Submission to Mastercard and Mastercard shall exclusively now and hereinafter own all rights, title and interest therein. Furthermore, Mastercard shall be free to use any Submissions for any purpose whatsoever, including, but not limited to, developing and marketing products and services. Mastercard shall not be liable for such use or disclosure of such Submission or for any similarities in the Submission and any future Mastercard products and services. If you submit a Submission on the Site, you also irrevocably grant Mastercard the right to use your name, username, Twitter handle, profile picture, voice, likeness and biographical material in connection with any and all Mastercard advertising and promotional campaigns, including, without limitation, on the Site or in connection with Mastercard products and marketing materials. You acknowledge and agree that no confidential relationship or obligation of secrecy or confidentiality is established between you and Mastercard regarding the Submission, despite any statement or legend to the contrary on the User Submission and any related materials.

 

Each time you submit any Submission, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any Submission you submit, and that, as to that Submission: (a) you are the sole author and owner of the intellectual property and other rights to the Submission, or you have a lawful right to submit the Submission and grant Mastercard the rights to it that you are granting by this Terms of Use, all without any Mastercard obligation to obtain consent of any third party and without creating any obligation or liability of Mastercard; (b) the Submission is accurate; (c) the Submission does not and, as to Mastercard’s permitted uses and exploitation set forth in this Terms of Use, will not infringe any intellectual property or other right of any third party; and (d) the Submission will not violate this Terms of Use, or cause injury or harm to any person.

 

17.           Merchant and Merchants Offers

Merchants and alliance partners (including nonprofits) may provide to Mastercard cardholders certain offers, experiences, discounts or other benefits on the purchases of goods and services (collectively, “Offers”) that will be available on the Site or directly through the merchant or the alliance partner. Such Offers are subject to certain terms and conditions for each Offer and may change at any time without notice to you. While we facilitate the sale or availability of such Offers on our platform, the merchant or alliance partner that provides the Offer is responsible for the sale, fulfillment, care, quality and delivery of the goods and services offered.  In some cases, you may receive an invoice from the local partners that are fulfilling the sale of the Offer and collecting and remitting applicable taxes. Mastercard will not be liable for any loss or damage incurred as a result of any interaction between you and a merchant or the alliance partner with respect to such Offers. You acknowledge that Mastercard does not endorse or warrant the merchants or the alliance partners that are accessible through the Site nor the Offer that they provide on the Site or on their own website.

 

Purchases of Offers are subject to availability.  All descriptions, images, references, features, content, information, specifications, products and prices described or depicted in connection with the Offers are subject to change at any time without notice.  We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, benefits, rewards, specifications, availability and services, including for any items sold or made available as a reward by third parties (if any).  We reserve the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice.  Descriptive, typographic and photographic errors are subject to correction and we shall have no liability of any kind for such errors.  We reserve the right to modify or cancel orders for any Offers for any reason, including for typographical, pricing and other errors at any time.  PRODUCTS AND SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME.

 

18.           Contests and Sweepstakes

From time to time, we make you aware of certain Mastercard or third party related contests and sweepstakes or other promotions. All such contests, sweepstakes and promotions are subject to the Official Rules or Terms and Conditions for such sweepstakes, contests and promotions and all related applicable laws, regulations and statutes.

 

19.           Third Party Content and Links to Other Websites

The Site may contain third party content and links to other websites that are completely independent of this Site. Third-party content and links are included solely for the convenience of users and do not constitute any approval, endorsement or warranty by Mastercard. Moreover, Mastercard is not responsible for the accuracy, completeness, or reliability of third-party information, or the products or services offered or sold through any linked website and you assume sole responsibility for the use of third-party information. Any agreements, transactions, or other arrangements made between you and such third party are made solely at your own risk. When you click on a third-party link, you will leave the Site. Any personal information you submit on the resulting site will not be collected or controlled by Mastercard but will be subject to the privacy notice or terms of use of the resulting site. Please review the privacy notice and terms of use of the resulting site for more information on its privacy practices.  Mastercard is not responsible for examining or evaluating, and we do not warrant the offerings of any third party content or Offer presented on this Site. Mastercard does not assume any responsibility or liability for the actions, Offer and content of all these and any other third parties. Carefully review the Offer details and terms and conditions prior to purchase.

 

20.           Privacy Notice

 

Mastercard recognizes the importance of respecting the privacy of those who visit and choose to take advantage of the programs and information offered on the Site. Click here to view our privacy notice related to your use of this Site.

 

21.           Indemnification

You agree to indemnify, defend (at Mastercard’s option) and hold Mastercard, Benevity, any donor advised fund and any other financial intermediary used by the Site to help facilitate any charitable donations, and each of their respective parent companies and their respective agencies, business partners, including charities, Mastercard issuing financial institutions and providers of goods and services available on or through the Site and each of their respective officers, directors, employees and affiliates harmless from and against any and all liabilities, losses, claims, costs, damages and investigations, judgments, fines, penalties, settlements, interest and expenses, including, without limitation, reasonable attorneys’ fees and expenses, related to or arising from: (i) your breach or alleged breach of these Terms of Use; (ii) any claims, costs, injuries, losses and damages related to any unauthorized use of the Content; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (iv) your use and misuse of the Site and your activities in connection with the Site; (v) your violation or infringement of copyright or other intellectual property or other rights of third parties contained in your Submissions and/or any other violation of law or breach of contract obligations relating to the Submissions; (vi) any misrepresentation made by you; and (vii) Mastercard’s use of the information that you submit to us (including your Submissions and User Submissions). YOU WILL COOPERATE AS FULLY AND AS REASONABLY REQUIRED IN MASTERCARD’S DEFENSE OF ANY CLAIM. MASTERCARD RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND YOU SHALL NOT, IN ANY EVENT, SETTLE ANY MATTER WITHOUT THE PRIOR WRITTEN CONSENT OF MASTERCARD.

 

22.           Disclaimer of Warranties

 

While Mastercard will use reasonable efforts to ensure that all material on this Site is correct; however, completeness, accuracy, timeliness, or adequacy cannot be guaranteed and Mastercard does not assume any responsibility or liability for the accuracy, completeness or authenticity of any information contained in this Site. Reference to any product, charity organization or process, publication or service of any third party by trade name, domain name, trademark, service mark, logo, manufacturer or otherwise does not constitute or imply its endorsement or recommendation by Mastercard.

 

The Internet may be subject to breaches of security. Mastercard is not responsible for any resulting damage to any user’s device or computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that email and other submissions over the Internet may not be secure, and you should consider this before emailing Mastercard any information or posting information to the Site. Mastercard makes no representation or warranty whatsoever regarding the suitability, functionality, performance, availability or operation of the Site. The Site may be temporarily unavailable due to maintenance or malfunction of computer equipment.

 

THE SITE, AND ALL CONTENT CONTAINED THEREIN, AND SERVICES PROVIDED BY, ON OR THROUGH THE SITE, ARE PROVIDED TO YOU “AS IS,” AND “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING ANY WARRANTY OR CONDITION OF SATISFACTORY QUALITY, MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, OR FITNESS FOR GENERAL USE OR FOR A PARTICULAR PURPOSE. NO INFORMATION OR SERVICE OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITATION, MASTERCARD DISCLAIMS ALL WARRANTIES REGARDING THE AVAILABILITY OF THE SITE, THAT THE SITE WILL OPERATE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THIS SITE IS AT YOUR OWN RISK, ANY CONTENT OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THIS SITE IS PROVIDED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR ANY DATA LOSS THAT MAY RESULT FROM YOUR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGE RESULTING FROM COMPUTER VIRUSES. NOTHING IN THESE TERMS OF USE EXCLUDES OR LIMITS MASTERCARD’S LIABILITY FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR MASTERCARD TO EXCLUDE OR ATTEMPT TO EXCLUDE ITS LIABILITY.

 

23.           Disclaimer of Damages and Limitation of Liability

 

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MASTERCARD, ITS AGENCIES, BUSINESS PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL DAMAGES WHATSOEVER, PROPERTY DAMAGE, LOSS OF USE, LOSS OF BUSINESS, ECONOMIC LOSS, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR ACCESS OF THE SITE OR ITS CONTENT, EVEN IF MASTERCARD OR ITS AGENCIES, BUSINESS PARTNERS, EMPLOYEES, REPRESENTATIVES OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL MASTERCARD’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR USD $10 (WHICHEVER IS LESS), FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO THE SITE. NOTHING IN THESE TERMS EXCLUDES OR LIMITS MASTERCARD’S LIABILITY: (I) FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (II) FOR FRAUD OR FRAUDULENT MISREPRESENTATION, OR (III) FOR ANY MATTER THAT IT WOULD BE ILLEGAL FOR MASTERCARD TO EXCLUDE OR ATTEMPT TO EXCLUDE ITS LIABILITY.

 

Without limiting the foregoing, we are not responsible for any card account fees or penalties that you incur on your Mastercard card account as a result of your use of the Site.

 

Mastercard does not represent, warrant or guarantee that any or all donations made via the Site will be deductible or tax-free for income or other tax purposes, or that any charitable organization has or will continue to have charitable or non-profit status, or complies with legal requirements applicable to charitable organizations in any jurisdiction.

 

Without limiting the foregoing, we are not responsible for any errors in the Offer details or terms and conditions, any card account fees or penalties that you incur on your World or World Elite Mastercard or Mastercard card, including fees and penalties that may result from reversals. Any tax liability resulting from your purchase or use of an Offer shall be your sole responsibility, and not our responsibility or the responsibility of a merchant, Mastercard or the financial institution that issued your Mastercard card. Merchants or your issuing financial institution may report information regarding the Offers and your use of such Offers to tax authorities. Merchants and your issuing financial institution may not vary these terms as applied to the relationship between you and us and may not make any commitments that are binding on us.

 

24.           Inapplicability of Terms of Use to any Mastercard Payment Card Cardholder Agreement

Mastercard is a leading payment services organization. Mastercard is not a financial institution and does not issue credit, debit, prepaid or payment cards of any type of nature. Your Mastercard-branded payment card relationship is with an issuing bank or financial institution. Any and all questions or issues regarding your Mastercard-branded payment card or cardholder account should be directed to the bank or financial institution that issued your card, and not to Mastercard. While Mastercard has a relationship with your issuing bank or financial institution, that relationship does not pertain to individual cardholders or payment card accounts.

 

25.           Force Majeure Delays and Cancellations

An Offer may be delayed, modified, suspended, rescheduled or cancelled by Mastercard or the merchant that provided the Offer due to: weather conditions or other elements of nature or acts of God (including, without limitation, fire, earthquakes, floods, hurricanes, tornadoes, droughts, unusually severe weather), civil or military authority, the public enemy, or war; riots; accidents; explosions; power surges; strikes or labor disputes; delays in transportation or delivery; epidemics; pandemics; quarantine or embargo; public health emergency of local, national or international concern; terrorism or threats of terrorism; national or regional emergency; error or disruption to major computer hardware or networks or software failures; and any other event that is beyond the reasonable control of Mastercard or the Offer provider.   

 

26.           Site Operator

This Site is operated by Traina Interactive Corp., a Mastercard company.

 

27.           Dispute Resolution

PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING ARBITRATION, AMONG OTHER THINGS.

A. First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, dispute or claim arises out of or relates to the Site, Offers, the Content, your User Submissions, Submissions, these Terms of Use, any advertising or marketing communications regarding Mastercard or the Site, any products or services sold or distributed through the Site, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Mastercard’s actual or alleged intellectual property rights (an “Excluded Dispute,” which includes those actions set forth in Section (F) below), then you and we agree to engage in good-faith informal efforts to resolve the Dispute or Excluded Dispute by sending a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section (A). Your notice to us must be sent to: Mastercard, 2000 Purchase Street, Purchase, NY 10577 (Attn: Legal Department). The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, Mastercard and you agree to negotiate in good faith about the dispute through an informal telephonic dispute resolution conference between you and Mastercard in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Mastercard to resolve the Dispute or Excluded Dispute on terms with respect to which you and Mastercard, in each of our sole discretion, are not comfortable. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence an individual formal dispute resolution proceeding; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 27 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Mastercard agree that we intend that this Section 27(A) satisfies the “writing” requirement of the Federal Arbitration Act (“FAA”).

 

B. Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 27(A) (or agree to arbitration in writing with respect to an Excluded Dispute), within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND MASTERCARD (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, FRAUD, ANY OTHER INTENTIONAL TORT OR COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY – AND WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS OF USE, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.

 

For U.S. residents, the FAA, not state law, shall govern the arbitrability of all Disputes between Mastercard and you, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Mastercard and you agree, however, that New York or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies and damages arising between you and Mastercard regarding these Terms of Use and the Site, whether arising or stated in contract, statute, common law or any other legal theory, without regard to New York’s choice of law principles.

 

A Dispute will be resolved solely by binding arbitration in accordance with the then-current (i) Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA. The arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Mastercard consent to in writing. 

 

C. Arbitration Process. If after sixty (60) days the informal dispute resolution procedure set forth in Section 27(A) above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf  (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules.  The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location. You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require Mastercard to pay a greater portion or all of such fees and costs in order for this Section 27 to be enforceable, then Mastercard will have the right to elect to pay the fees and costs and proceed to arbitration.  Except as set forth in Section 27(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms of Use and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and if such determination on the Dispute is in favor of the individual party seeking relief, will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitrator will render an award within the time frame specified in the Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms of Use. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the “Limitation of Liability“ Section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated.  In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. All issues are for the arbitrator to decide, except that the issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), MASTERCARD will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms of Use or the Site. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.

 

D. Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Mastercard by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Mastercard shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, Mastercard and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, Mastercard and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Mastercard and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “Batch Arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Mastercard does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 27(D). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section_27(D) from the time the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved. A court shall have authority to enforce this Section 27(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Mastercard.

 

E. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 27(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 27(A); (b) filing for arbitration with the AAA as set forth in Section 27(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.    

 

F. Injunctive Relief. The foregoing provisions of this Section will not apply to any legal action taken by Mastercard to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your Submissions, your User Submissions, and/or Mastercard’s intellectual property rights (including such Mastercard may claim that may be in dispute), Mastercard’s operations, and/or Mastercard’s products or services.    

 

G. No Class Action Matters. YOU AND MASTERCARD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Except as expressly contemplated for mass arbitrations set forth in Section 27(D), Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 27(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 27(I). Notwithstanding any other provision of this Section, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.  Notwithstanding any other provision of these Terms of Use, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void.  If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement. 

 

H. Small Claims Matters Are Excluded From Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction.

 

I. Federal and State Courts in Westchester County, New York. Except as set forth above (i) where arbitration is required; (ii) in small claims actions; or (iii) with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may be instituted only in state or Federal court in Westchester County, New York. Accordingly, you and Mastercard consent to the exclusive personal jurisdiction and venue of such courts for such matters.

 

28.           Miscellaneous

 

These Terms of Use including any non-contractual obligations or liabilities arising out of or in connection with them, shall be construed, interpreted and performed exclusively according to the laws of New York, without giving effect to any principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to these Terms of Use. We reserve the right to limit the availability of the Site and/or the provision of any Content, Offer, program, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any Content, Offer, program, product, service, or other feature that we provide.

 

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, WIDGET APPLICATION, CONTENT, USER-GENERATED CONTENT, SUBMISSIONS, USER SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY MASTERCARD (INCLUDING YOUR LICENSED USER SUBMISSIONS) OR A LICENSOR OF MASTERCARD.

 

Content and software from the Site may be subject to U.S. export jurisdiction and the import jurisdiction of other countries. In connection with your use of this Site, you are solely responsible for complying with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, including, but not limited to, those of the U.S. Department of Commerce, Export Administration Regulations, 15 CFR Parts 730–774, the International Traffic in Arms Regulations, country-specific economic sanctions, programs implemented by the Office of Foreign Assets Control and export and import control laws and regulations of any other countries. You may not, directly or indirectly, use, distribute, transfer or transmit content or software from this Site, whether by way of a direct product or of such materials or products, software, or other technical information into which content or software from this Site has been incorporated, except in compliance with all applicable export and import laws and regulations of all relevant jurisdictions.

 

Mastercard reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms of Use and any additional terms, (iii) investigate any information obtained by Mastercard in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms of Use, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any additional terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Mastercard under these Terms of Use. Upon suspension or termination of your access to the Site, or upon notice from Mastercard, all rights granted to you under these Terms of Use will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms of Use, which by their nature should survive your suspension or termination, will survive, including the rights and licenses you grant to Mastercard in these Terms of Use, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, and no class action.

 

These Terms of Use may not be assigned by you. Mastercard may assign its rights and obligations set forth in these Terms of Use at any time. Should any part or provision of these Terms of Use be held unlawful, void, invalid or unenforceable, that portion shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. Except as provided herein, these Terms of Use constitute the entire agreement between you and Mastercard pertaining to their subject matter. Certain provisions of these Terms of Use may be superseded or added to by designated legal notices or terms located on particular pages, applications, tools or other materials that you may access within this Site. Mastercard’s failure to enforce any provision of these Terms of Use or any additional terms shall not be deemed a waiver of such provisions nor of its right to enforce such provision. These Terms of Use and any related documents may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between you and Mastercard. You hereby agree, without limitation, that you will not contest the validity or enforceability of these Terms of Use and any related documents.

 

Last Revised: May 20, 2022

 

Customer Service

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