Valid April 1, 2017
The following defined terms appear in these Terms of Service.
- “Account” is the account that you create for the use of the Services offered by the Company and Market Operator.
- “Account Benefits” included, but not limited to, the promotions, programs, offers, coupons, discounts, subsidies, and loyalty programs offered by the Market Operator, Company, Brand Partner, or Employer / Market Sponsor.
- “APP” is the Mobile Application used to facilitate transactions and other interactions with the Company and Market Operator through a User’s mobile device.
- “Authentication” is the process of verifying the identity of an individual or device used to access the Company’s Services. Authentication can be accomplished through any appropriate method the Market Operator chooses including PIN, Password, Tokens, Biometric, etc.
- “Applicable Law” means any and all federal, state, and local laws, rules and regulations applicable to the Service.
- “Brand Partner” is a brand that supports or issues promotions, programs, discounts, coupons, and/or loyalty program benefits to the User for the purchase or use of its products.
- “Company” means Avanti Markets Inc, a Washington limited liability company.
- “Content” means the information, writings, images, and/or other works that you see, hear, or otherwise experience while using the Company’s App, Market Card, Website, and/or Kiosk.
- “Funding Method” means cash, payroll deduct, or a charge to a credit, debit, or prepaid card that is registered or used by the User to fund payments made to your Market Card Account.
- “Employer / Market Sponsor” is the entity that has contracted with a Market Operator to place a Market in the facility.
- “Kiosk” is an unmanned or manned point of sale where items are scanned and purchased.
- “Loading Activity” means placing funds into your Market Card Account using a Funding Method.
- “Market” means the self-service convenience store or Micro-Market where a User can purchase items.
- “Market Card” is the prepaid physical card or keytag used to purchase items from a Market.
- “Market Card Account” is the prepaid portion of your account.
- “Market Card Account Balance” means any amount of funds that you have in your account.
- “Market Operator” is the entity that manages or operates the Market where the User can purchase items.
- “Payment Activity” means to make purchase transactions using your Account.
- “Payment Card” is an account where you receive a statement such as a Credit or Debit Card.
- “Registered User” is a User who has provided a valid email address, web enabled their account by visiting the Website to create a password, and has accepted the Terms of Service.
- “Terms” means the Terms of Service, a contract between the User and the Company.
- “Website” means the website(s) where the users can manage their accounts. Ask your Market Operator for the URL but for most Users, this will be mymarketcard.com.
- “User” means a Customer that registers for or creates an Account and/or uses the Service to interact with and purchase goods and/or services from a Market.
B. Eligibility, Registration, and Account
You must be a resident of the United States and 18 years or older to use the Services. If you are between the ages of 13 and 18, you need the consent of your parents to use the Services—you are not permitted to use the Services if you are under the age of 13. You must use the Services in the United States and use the Service only with cash or credit, debit or prepaid cards issued by United States financial institutions.
- Creating and managing your Account and registration.You can create your Market Account by registering at your Market’s Kiosk. Providing your email address is required to set up your Account, and the Company will send you an email with instructions to give you access to the website where you may manage your Account. The website requires that you create a Password and that you accept Terms to complete your Account Setup to become a Registered User. The Company and/or Market Operator may require registration so that the User can be eligible for benefits such as replacing lost cards, unused market card balances and consolidating account balances from multiple Market Cards, etc.
- Promotions, Loyalty Programs and Account Benefits.By setting up your account, you may be eligible to receive certain account benefits, including but not limited to: promotions, programs, offers, coupons, discounts, subsidies and loyalty programs that the Market Operator, the Company, Brand Partners, or the Employer / Market Sponsor may offer. Some Market Operators may not require registration to receive some or all Account Benefits.
The Company has developed a transactions platform for unattended retail commerce that enables you, the User, among other things, to
- Load money into your Account using a Funding Method (we refer to this use as “Loading Activity”)
- Make purchase transactions using your Account (we refer to this use as “Payment Activity”);
- Receive or be eligible to receive certain promotions, programs, offers, coupons, and loyalty programs that your Market Operator, the Company, Brand Partners, Third Party
- Entities, or the Employer / Market Sponsor may offer (we refer to this use as “Account Benefits”); and
- Authenticate yourself by methods accepted by your Market Operator and the Company – the methods will vary according to your Market but can include Biometrics, PINs, etc. (we refer to this use as “Authentication”).
In these Terms of Service, we also use the terms Payment Card(s), Kiosk, Market Operator, Brand Partner—these terms have the meanings set forth in Section A of this document. A “Payment Card” is an account where you receive a statement such as a Credit or Debit Card. “Funding Methods” include Payment Cards and cash, prepaid and other payment products that the Company may choose to accept as Funding Methods for Loading Activity.
1. Loading Activity
- You may maintain funds in your Account, and such funds will be known as your “Market Card Account Balance.” When you load money into your Account using a Payment Card, you are authorizing the Company to charge this Card. Please note that Avanti will be “merchant of record” for all charges to your Payment Card made using your Account, which means that this name will appear on your Payment Card statement, not the name of the Market Operator or Employer / Market Sponsor whose name may appear on the Market where you make a purchase. The Payment Cards that can be used with your Account will be determined by the Company and/or Market Operator in its sole discretion, and may change over time.
- To make reloading your Account easier, you can use the Auto-Reload feature. To set up Auto-Reload, visit the Website and log into your account. Simply set up the balance at which you want to trigger a reload, and the Auto-Reload amount to load onto your Market Card Account. Your Payment Card will be billed for the designated reload amount when your balance meets the reload threshold you select. You can change your preferences at any time, but changes may take up to 24 hours to go into effect. To discontinue your Auto-Reload, you must visit the Website. Changes will be in effect within 24 hours of your request. Once the dollar value is loaded, the value may be used through Payment Activity, but the load transaction cannot be reversed.
- Market Card Account Balances will be maintained by the Company and/or your Market Operator. Neither entity is a bank and neither entity accepts deposits or maintains deposit obligations for you. Market Card Account Balances are not deposit obligations of Account users and are not insured for the benefit of Account Users by the Federal Deposit Insurance Corporation (FDIC) or any other governmental agency. The Company and/or your Market Operator do not pay interest to you on Market Card Account Balances or any other funds. You assign to your Market Operator or the Company the right to earn interest on funds in the deposit account of the bank, in consideration of your use of the Services.
- You are not permitted to withdraw funds from your Account. However, the Company may credit funds back to the Payment Card linked to your Account in the event of fraud or unauthorized use of the Payment Card.
- If for any reason, your Market Card Account Balance becomes negative, you authorize the Company to (i) initiate a debit or charge to your Payment Cards that are linked to your Account to bring your Market Card Account Balance to $0, and/or (ii) use a third party to recover funds from you to bring your Market Card Account Balance to $0. Your authorizations under this paragraph remain in effect until ninety (90) days following termination or cancellation of your Account.
- When you purchase goods using your Account, you are authorizing the Company to deduct the purchase amount from your Account.
- If you encounter difficulties in making a purchase, please contact the Market Operator for assistance or the Company if the problem relates to the use of APP.
3. Account Benefits
The Company may enable Market Operators, Brand Partners, third party entities, and itself to offer you promotions, programs, offers, coupons, and loyalty programs. The Company reserves the right to place expiration dates and usage limitations on promotions, programs, offers, coupons, and loyalty programs.
4. Transaction Limits
The Company may impose transaction limits on your Account if we believe there is potential fraud being conducted with or without your knowledge. If you have questions regarding limits on your Account, please contact Customer Service at Info@avantimarkets.com.
5. Receipts and Statements
After each purchase, you will be given the option to print a receipt at the Kiosk. You can check the balance on your Account or review recent transactions in your Account on the Website or within the Account History section in your APP.
6. Billing Errors, Corrections
The Company reserves the right to correct the balance of your Account if we believe that a clerical, billing, transactional, or accounting error occurred. If you have questions regarding your transaction history or any correction, or if you dispute any transaction or correction that has been assessed against your Account, please contact Customer Service at Info@avantimarkets.com.
7. Updates to APP
The Services are controlled and operated from facilities in the United States. The Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found related to the Services are solely directed to individuals, companies, or other entities located in the United States.
D. Usage Fees and Charges
1. Possible Payment Card Fees
All Payment Card activity is subject to the terms and conditions governing the use of your Payment Card. The User is responsible for any charges and related fees that may be imposed under the Payment Card terms and conditions as a result of User’s use of a Payment Card. Refer to your Payment Card Issuer’s terms and conditions for this information.
2. Wireless Service Provider Fees and Charges; Data Limit Applicability
When using your APP, your wireless service provider may charge you for data transmitted to or from your mobile device and/or text messages. Text messaging and data transmissions also may be applied against data usage limits set by your wireless service provider and you are solely responsible for such charges. Those messages and transmissions and related charges may be triggered by your usage of the APP (for example, to make a purchase) as well as updates to the APP. When you use the APP to make a purchase, general information about the status of the Kiosk where the purchase was made, such as product inventory levels, may be transmitted through your mobile device as well. Charges by your wireless service provider will appear on your wireless service provider bill pursuant to your wireless service contract. Additionally, roaming and other fees and charges may apply when roaming outside your home service area. Contact your wireless service provider for complete pricing and other details.
E. Your Account and Security
1. User ID, Password, PIN Code
When you establish your Account or first sign into the APP, you may be asked to create a unique User ID (i.e. your valid email address), password, and PIN code. You agree that any information you provide to us, as part of the activation process or otherwise, will be accurate and that you will keep it current with us. You are responsible for safeguarding your User ID, password, and PIN code. You are also responsible for any and all activity that occurs under or in association with your Account, including such activity that results from your failure to keep your User ID, password, and PIN code secure and confidential. Should you attempt to login with an invalid password, your Account may become locked, requiring you to reset your password.
- Reporting Unauthorized Use
You agree to notify us immediately in the event of any unauthorized use of your Account.
3. Cooperation in Investigation
If you notify us about any unauthorized use of your Account, or if we otherwise suspect fraudulent or abusive activity, you agree to cooperate with us in any investigation and to use any fraud prevention measures we prescribe. Without limiting any other obligations or liability you may have under these Terms of Service, your failure to cooperate or to use such measures will result in your liability for all fraudulent usage or abusive activity associated with your Account.
F. Content and User Submissions
You may use the App, Market Card, Website, Kiosk, and the information, writings, images, and/or other works that you see, hear, or otherwise experience (singly or collectively, the “Content”) solely for your non-commercial, personal purposes, and/or to learn about the Services. No right, title, or interest in any Content is transferred to you, whether as a result of downloading such Content or otherwise. The Company retains ownership of all intellectual property rights in all Content.
2. Idea Submission
If you submit questions, comments, feedback, suggestions, ideas, or other information, including information and ideas about the APP, Services, or Website (collectively, “Ideas”), your submission of Ideas is voluntary, non-confidential, gratuitous, and non-committal. The Company owns exclusive rights, including all intellectual property rights, and is entitled to the unrestricted use and dissemination of Ideas for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
G. Use of Website & APP
1. Permitted Uses; Content Submissions
You have the right to access the Website and APP subject to your agreement to be bound by these Terms of Service. You may use the Website, APP, and Content as described in these Terms of Service. We may limit the number of times you can visit or log in to the APP or Website within a certain period of time.
2. Prohibited Uses
Without limiting the generality of any restriction on the use of Services elsewhere in these Terms of Service, you agree not to do any of the following:
- bypass or circumvent measures we may use to prevent, interfere, or limit access to the Website;
- use the Website to send altered, deceptive, or false source-identifying information;
- use the Website to intercept, collect, or store personal information about other users;
- “spam” other users or take other actions that may affect the operation or enjoyment of the Website by other users;
- access, monitor, or copy any Content on or in the Website using any robot, spider, scraper, or other automated means or any manual process;
- send a virus or use any malicious program or technique in connection with the Website;
- overload or crash the Website;
- take any action that might compromise the security of the Website;
- render the Website inaccessible to others or otherwise cause damage to the Website or any Content;
- add to, subtract from, or otherwise modify any Content;
- access any Content that is not intended for you;
- use the Website in any manner that might sinterfere with the rights of third parties;
- engage in excessively high volume data transfers or bandwidth use, including by hosting a web server, internet relay chat server, or any other server via any use of the Website, or
- attempt any of the foregoing.
H. Communicating with You Electronically
You agree and consent to the Company and Market Operator communicating information, notices, messages, service alerts, announcements, agreements, disclosures, or other communications (“Electronic Communications”) associated with Services, the Market, or your purchases to you electronically by e-mailing such Electronic Communications to the e-mail address on file in your Account and by sending such Electronic Communications to you via text message to the mobile number on file in your Account. As required by law, we will give you the opportunity to opt-in or opt-out of receipt of Electronic Communications via text messaging.
Electronic Communications are deemed to be received by you when they are sent to you in accordance with these Terms of Service. You agree to keep your email address up to date with us in order that we may communicate with you. You may do so by updating your contact information as indicated on our website or in your Profile in the App.
I. Intellectual Property Rights
1. Intellectual Property
You acknowledge and agree that the Company and/or our licensors own all legal right, title, and interest in and to the Services, including any trademark, copyright, patent, trade secret, and other intellectual property rights that subsist in the Services and any collateral and related materials we may distribute in connection with the Services (whether those rights are registered or not, and wherever in the world those rights may exist). You agree that you will not use any third-party materials associated with the Services in a manner that would infringe or violate the rights of any other party, and that we are not in any way responsible for any such use by you. All third-party marks, including the logos of Operators, Employers / Market Sponsors, Brand Partners, and other Partners are the property of their respective owners.
2. License & Restrictions
Subject to these Terms of Service, the Company grants you a limited, revocable, non-exclusive, non-transferable license to use the APP, Kiosk, and Website for the sole purpose of accessing your Account for your own individual use on any mobile device you own or control. You agree not to (i) take any action that would jeopardize, limit, or interfere with the Company and its Services, (ii) copy, translate, publish, or create derivative works of the APP or any applicable component of the Services, (iii) resell, distribute, trade, or make any other commercial use, modify, reverse engineer, decompile, or disassemble the APP or any applicable component of the Services, or (iv) use the Services for illegal or fraudulent purposes. You further agree to use the Services for purposes that are permitted by these Terms of Service and in accordance with applicable law and regulation.
3. U.S. Government Users
If you are a U.S. Government end user, the APP, Kiosk, Website, and other Services and related documentation are Commercial Items, as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the U.S. Government end user (i) only as Commercial Items, (ii) not as military or defense articles as defined in the International Traffic in Arms Regulations, 22 C.F.R Parts 120-130 or Export Administration Regulations, 15 C.F.R. Parts 700-799), and (iii) with only those rights as are granted to all other end users pursuant to these Terms of Service herein. Unpublished rights reserved under the copyright laws of the United States.
J. Copyright Infringement
The Company respects the intellectual property rights of others and asks you to do the same. It is the Company’s policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Company’s Website, Kiosk, or APP in a way that constitutes copyright infringement, please contact the Company’s copyright agent at the address below and provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyright-protected work that you claim has been infringed; (c) the location on the Website, Kiosk or APP of the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a statement by you regarding your good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf. By submitting a copyright infringement notice, you acknowledge and agree that the Company or its copyright agent may forward the information you provide in this notice to the person who uploaded the allegedly infringing material.
You may write to the Company’s designated agent for notice of copyright infringement at:
Avanti Markets Inc.
Attn: Copyright Agent
13800 Tukwila International Blvd
Tukwila, Washington 98168
If you believe that your removed or disabled User Content is not infringing, or that you have the authorization or right to post and use that User Content from the copyright owner, the copyright owner’s agent, or pursuant to law, you may send a counter-notice containing the information required by Section 512(g)(3) of the Digital Millennium Copyright Act (17 USC § 512(g)(3)). The Company or its copyright agent will forward your counter-notification to the party who submitted the original copyright infringement claim. If the original claimant does not file an action seeking a court order to restrain you from engaging in infringing activity related to the removed or disabled User Content within 10 business days of receiving the counter-notice from the Company, then the Company may, in its sole discretion, reinstate the removed or disabled material.
K. Modification of Terms of Service
We have the right, in our sole and absolute discretion, to change, modify, or amend any portion of these Terms of Service at any time by posting notification here or otherwise communicating the notification to you. The changes will become effective, and will be deemed accepted by you, after the initial posting and will apply on a going-forward basis with respect to your use of the Services after the posting date. In the event that you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services.
L. Your Acts and Omissions
You are solely responsible for your acts and omissions in connection with your use of the Services, AND WE WILL NOT HAVE ANY LIABILITY for any claim, action, or liability that arises out of or is in any way connected with such acts or omissions. As set forth above, in order to access the Account you may be required to establish a User ID, password, and PIN code. We will have no responsibility or liability if you lose, share, or fail to keep confidential any of these credentials.
M. Limitation of Company Liability and Damages
IN NO EVENT WILL THE COMPANY, ITS PARENT COMPANIES, SUBSIDIARIES OR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE FOR ANY BREACH OF THESE TERMS OF SERVICE OR THE PROVISION OF THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF
BUSINESS OR GOODWILL OR LOSS OF USE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR ANY CLAIM BY ANY THIRD PARTY.
WE WILL NOT BE LIABLE EVEN IF WE ARE UNABLE TO PROVIDE THE SERVICES (OR ANY PART THEREOF) OR PERFORM ANY OF OUR OBLIGATIONS CONTAINED IN THESE TERMS OF SERVICE DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF ANY EQUIPMENT OR ANY INDUSTRIAL DISPUTE, WAR, FLOOD, EXPLOSION, ACT OF GOD, OTHER FORCE MAJEURE OR ANY OTHER EVENT BEYOND OUR CONTROL.
THE COMPANY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT OF PROPRIETARY RIGHTS. THESE TERMS OF SERVICE CONTAIN OTHER DISCLAIMERS, LIMITATIONS AND EXCLUSIONS THAT MAY NOT BE ALLOWED IN CERTAIN JURISDICTIONS, AND THUS NOT APPLICABLE TO YOU. THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. IF YOU ARE DISSATISFIED WITH THE WEBSITE, THE APP, THE KIOSK OR ANY OTHER SERVICES, THE CONTENT OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY CANNOT AND WILL NOT BE LIABLE FOR ANY ACTS, OMISSIONS MATERIALS, PRODUCT, OR SERVICES OF ANY MARKET OPERATOR, BRAND PARTNER, STRATEGIC PARTNER OR ANY OTHER THIRD PARTY INCLUDING, WITHOUT LIMITATION, (A) ANY MISTAKE IN AUTHENTICATING DATA, FOR SECURITY PURPOSES OR OTHERWISE, (B)
VERIFYING WHETHER YOU ARE ELIGIBLE TO COMPLETE A TRANSACTION OR MAKE THE PAYMENT FOR WHICH YOU ARE ACCESSING YOUR ACCOUNT, (C) ANY MISTAKE BY A MARKET OPERATOR, BRAND PARTNER OR STRATEGIC PARTNER, PAYMENT PROCESSOR OR OTHERWISE IN CONNECTION WITH YOUR COMPLETING A TRANSACTION OR MAKING A PAYMENT, (D) ANY MISTAKE IN TRANSMISSION OF DATA BY ANY THIRD PARTY, (E) ANY FAILURE IN
EQUIPMENT, TRANSMISSION SYSTEMS OR THE FAILURE OF THE INTERNET OR YOUR WIRELESS SERVICES PROVIDER TO TRANSMIT INFORMATION, (F) ANY FAILURE OF YOUR MOBILE DEVICE OR ANY EQUIPMENT NECESSARY TO ENABLE THE SERVICES, (G) ANY FAILURE OF A KIOSK TO AUTHORIZE A TRANSACTION YOU INITIATED BY MEANS OF YOUR ACCOUNT OR TO VEND SELECTED PRODUCT, OR (H) ANY FAILURE OF A MARKET OPERATOR, BRAND PARTNER, STRATEGIC PARTNER TO HONOR OR OTHERWISE ENGAGE IN ANY ACTIVITY.
IN ADDITION, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALTHOUGH WE WILL TAKE REASONABLE PRECAUTIONS TO PROTECT THE SERVICES AND AVOID DELETION, CORRUPTION OR UNAUTHORIZED MODIFICATION OR ACCESS OF OR TO THE SERVICES (OR ANY DATA STORED IN OR TRANSMITTED THROUGH THE SERVICES), WE MAKE NO REPRESENTATION OR WARRANTY THAT SUCH EFFORTS WILL BE SUCCESSFUL, AND WE SPECIFICALLY DISCLAIM ALL LIABILITY WHATSOEVER WITH RESPECT TO ANY FAILURE TO PROTECT THE SERVICES OR PROVIDE THE SERVICES ERROR-FREE OR UNINTERRUPTED.
IF, DESPITE THE FOREGOING PROVISIONS, LIABILITY IS NEVERTHELESS IMPOSED ON THE COMPANY, OR ITS PARENT COMPANIES, SUBSIDIARIES OR AFFILIATES, OR ON ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, SUCCESSORS OR ASSIGNS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE FOREGOING ENTITIES OR INDIVIDUALS UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR OUR PROVISION OF THE SERVICES EXCEED FIVE HUNDRED DOLLARS ($500), REGARDLESS OF THE NUMBER OF CLAIMS.
If a dispute of any kind arises related to the Services, we want to understand and address your concerns quickly and to your satisfaction. Please contact the Company’s Customer Support at Info@avantimarkets.com with any dispute. If we cannot resolve your concerns, we agree to an informal and inexpensive dispute resolution process requiring individual arbitration. “Disputes” between you and the Company (“The Company” includes its processors, suppliers, or licensors (or their respective affiliates, agents, directors, or employees)) are defined for the purposes of this Agreement to include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and the Company including but not limited to any claims relating in any way to these Terms of Service (including their breach, termination, or interpretation), any other aspect of our relationship, the Company’s communications, and any use of the Company’s Services. “Disputes” also include any claims that arose before these Terms of Service and that may arise after termination of these Terms of Service.
O. Binding Individual Arbitration
You and the Company agree to arbitrate all Disputes. Instead of a judge or a jury, Disputes will be decided by a single neutral arbitrator who has the power to award the same damages and relief that a court could order. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHT TO HAVE A DISPUTE DECIDED BY A JURY OR TO PARTICIPATE IN A CLASS ACTION AGAINST THE COMPANY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class arbitration).
Except for consumer claimants, as hereafter defined, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.com) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 applies. If you are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where you reside. Otherwise, any arbitration hearing will occur in Seattle, Washington, or another mutually agreeable location.
The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, the Company will pay all the arbitration fees. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover an award of reasonable attorney’s fees as part of an arbitration award. For any claim where you are seeking relief, the Company will not seek an award for recovery of its attorney’s fees, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and the Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors, and assigns as well as authorized users or beneficiaries of the Company’s Services.
Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the Seattle, Washington, or federal court for the Western District of Washington.
P. Governing Law
These Terms of Service and any Dispute will be governed by Washington law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Washington, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction.
Q. Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action arises.
These Terms of Service will remain in full force and effect until terminated by either you or the Company. If you wish to terminate, you may do so by closing your Account by contacting Customer Service at Info@avantimarkets.com.
We reserve the right at any time to modify or discontinue, temporarily or permanently, the Services, or your access to the Services, with or without notice. You agree that we will NOT BE LIABLE to you or to any third party for any modification, suspension, or discontinuance of the Services, or your access to the Services. Within ninety (90) days following termination of your Account, the Market Operator or the Company will credit your Market Card Account Balance back to the Payment Card linked to your Account.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following Sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: preamble and Sections C(1) (fifth paragraph only), C(2), C(6), F(2), I(1), and I(2) (excluding first sentence).
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the Company’s written consent, but may be assigned by the Company without restriction.
U. Miscellaneous Provisions
These Terms of Service contain the entire agreement between you and the Company pertaining to your use of the Services, and expressly exclude any writings, representations, agreements, or understandings not specifically captured or contained herein, whether written or oral. If any provision of these Terms of Service is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms of Service and will not affect the validity and enforceability of any remaining provisions. The failure to enforce any of these Terms of Service on one occasion will not prevent enforcement on any other occasion or the enforcement of any other term. Headings and captions will not be considered included for purposes of interpretation or application hereof, but are for convenience only.
V. Contacting Appropriate Parties
If you have any questions regarding the Services, please contact us at Info@avantimarkets.com. You should contact the applicable Market Operator for questions relating to your purchase.