Discover Gift Cardholder Agreement

 

Discover Gift Cardholder Agreement

This is the Agreement between you and Discover Bank for your Discover Gift Card ("Card"). Please read this Agreement carefully and retain it for future reference. By signing, accepting or using your Card, you agree to be bound by these terms and conditions. In this Agreement, "we", "us" and "our" means Discover Bank, the issuer of the Card and/or its affiliate, DFS Services LLC, the financial company that processes or services the Card. "Cardholder", "you" and "your" means the purchaser of the Card, and, if a different person, any user of the Card. "Available Funds" means the monetary value of your Card. These terms and conditions apply to both the purchaser and any other user of the Card. It is the purchaser's obligation to provide these terms and conditions to any user.

You have the right to reject the Arbitration of Disputes provision with respect to your Card prior to using your Card. You may reject the Arbitration of Disputes section by providing us a notice of rejection prior to using your Card, at the following address: Discover Gift Card, P.O. Box 52145, Phoenix, AZ 85072-2145. Your rejection notice must include your name, address, telephone number, Card number and signature and must not be sent with any other correspondence. Calling us to indicate that you reject the Arbitration of Disputes section or sending a rejection notice in a manner or format that does not comply with all applicable requirements is insufficient notice. In order to process your notice, we require that the notice be provided by you directly and not through a third party. Rejection of arbitration will not affect your other rights or responsibilities under this Agreement or your obligation to arbitrate disputes under any other account as to which you and we have agreed to arbitrate disputes. If you do not send a rejection notice, you will be obligated by the Arbitration of Disputes section with respect to this Card, even if you have previously held a different Card.

The Card, which is denominated with a predetermined value, may be used by the Cardholder to make purchases (up to the predetermined value) at most U.S. merchant locations where Discover Network Cards are accepted ("Merchants"). However, the Card is neither a credit card nor an FDIC-insured deposit account.

I. USE OF YOUR CARD

1. Each time you use the Card, you represent and warrant to us that you are either the Cardholder or an authorized user of the Card.

2. Unless a Merchant chooses to refund your Card, each Card transaction is a final, non-cancellable, and nonrefundable transaction.

3. You may use any number of Cards subject to the imposition of reasonable sales policies by us or our Card selling agents. However, Available Funds cannot be transferred from one Card to another.

4. You cannot use the Card to access cash at an ATM or Merchant, and the Card is only redeemable for goods and services, except as otherwise required by law.

5. Certain Merchants may require that we verify your address when a user attempts to make certain types of transactions. Merchants send out for authorization approval and, in some cases, may check to make sure the name and mailing address indicated for purchased merchandise matches the Card address. Therefore, if the Card has not been registered or you do not supply the address currently on file for the Card, you may not be able to complete a transaction for which this information has been requested.

II. USING YOUR CARD

Please call 1-866-522-7026 to activate your Card. You can check your Available Funds at www.checkgiftbalance.com or by calling 1-866-522-7026. You are responsible for all transactions on your Card. It is therefore important for you to keep track of your Available Funds. If you permit others to use your Card, you are solely responsible for monitoring both the nature and amount of their purchases.

Your Card has a predetermined value and cannot be used for purchases in excess of that value, except where the Merchant allows you to make up the difference with another form of payment. You cannot add monetary value to your Card. Your Card is intended for use at retail locations in the U.S. and can be used with Internet merchants. As with cash, you cannot "stop payment" on Card transactions.

The use of your Card to purchase good and services from Merchants constitutes a simultaneous debit to your Available Funds. If you authorize a transaction and then fail to make a purchase as planned, the authorization will result in a hold against your Available Funds for up to 31 days.

III. SPECIAL USE RESTRICTIONS

Cards are not accepted at ATMs, for reservations at restaurants, car rental companies, hotels, at check cashing or money order dispensing locations or at merchant locations where acceptance may not be feasible. For pay-at-the-pump gas stations, payment must be made inside.

Restaurants: Most restaurant Card authorization terminals are programmed to approve Card transactions for approximately 25% above the cost of the meal amount in order to cover the bill plus tip (for authorizations purposes only); your Card will likely be declined if its value is less than the cost of the meal plus 25%.

IV. TRANSFER OF THE CARD: U.S. ONLY

Your Card is transferable to others and, subject to applicable law; there are no age restrictions on its use. However, your Card may only be used within the U.S. and should not be transferred to anyone located outside the U.S.

V. RETURNS AND DISPUTES

Please familiarize yourself with a Merchant's return policy prior to completing a Card transaction. If you wish to return any merchandise purchased with the Card, you will be subject to the Merchant's return policies. Merchants may credit your returns back to the Card. For this reason, it is very important that you keep your Card, even after you have used all of your Available Funds, until you are sure that you are not expecting a Merchant refund to your Card. Thereafter, you should destroy any Card that has no value. Value credited back to the Card by a Merchant will be available for use approximately (3-7) days after the return is processed. You are responsible for resolving all disputes (including disputes related to the quality, safety or legality of merchandise or services) arising out of Card transactions directly with the appropriate Merchant and you agree that we accept no liability in this regard.

VI. FEES AND CHARGES

If you do not use your Card for twelve (12) consecutive months, you will be charged a servicing fee of $2.50 per month, except where such fees are limited or prohibited by law. A purchase fee of $3.95 or $6.95 with a greeting card will be charged except as prohibited by law. A $9.95 fee will be charged if you select express shipping.

VII. LOSS, DAMAGE OR THEFT OF THE CARD

You should protect your Card against theft with the same level of care that you use to protect the cash in your wallet. We cannot prevent the unauthorized use of your Card by others and cannot replace funds used by any unauthorized user.

You should immediately notify us if your Card has been lost, damaged or stolen. You may receive a replacement Card for the remaining value of your Available Funds, if any, as of the time we have accepted notice.

VIII. PRIVACY

We will not share information we collect with respect to Card purchases except as needed to complete the transactions or to comply with laws, government agency or court orders.

IX. NO EXPIRATION; VALID THRU DATE

Your Card does not contain an expiration date and, therefore, the Available Funds on your Card will never expire due to the passage of time. The "valid thru" date indicated on the front of your Card is not an expiration date, but is intended primarily for fraud protection purposes and also permits your Card to be used with certain Internet or mail/telephone order Merchants. After the "valid thru" date, your Available Funds will be temporarily unavailable until you contact Customer Service for a replacement Card with a new "valid thru" date. You may contact Customer Service at any time to obtain a replacement Card and such Card will be provided to you free of charge. You will need to provide Customer Service with the Card number to receive your replacement Card..

X. CUSTOMER SERVICE

Visit www.checkgiftbalance.com or call 1-866-522-7026 if you have any questions about your Card and its use.

XI. TRANSACTIONS IN EXCESS OF AVAILABLE FUNDS

If you attempt to use the Card when there are insufficient Available Funds for the particular transaction (e.g., $100 purchase when the Card only has $75 in Available Funds), and the Merchant does not fulfill a request to process a "split tender" transaction, the transaction will usually be declined. However, if due to a systems malfunction or for any reason whatsoever, a transaction occurs despite insufficient Available Funds on the Card (creating a negative amount on the Card, referred to herein as a "Shortage"), you agree to reimburse us, upon request, for the amount of the Shortage.

XII. REFUSAL OF CARDS

We are not responsible or liable to you if any Merchant refuses to honor the Card or for any other problems you may have with any Merchant. If a Merchant fails to honor the Card, please call the Customer Service Number to report the incident.

XIII. NO WARRANTY OF AVAILABILITY OR UNINTERRUPTED USE

From time to time the Card service may be inoperative, and when this happens, you may be unable to use your Card or obtain information about your Available Funds. Please notify us if you have any problems using your Card. You agree that we are not responsible for any interruption of service.

XIV. CHANGING THESE TERMS AND CONDITIONS/CARD CANCELLATION

We may change the terms of, or add new terms to, these Terms and Conditions at any time, with or without cause, and without giving you notice, in accordance with applicable law. In addition, we may suspend, cancel, add, modify or delete any feature offered in connection with your Card at our sole discretion at any time, with or without cause, and without giving you notice, subject to applicable law. If we cancel your Card, any Available Funds remaining on the Card upon such cancellation, after payment for all applicable fees, will be returned to you. If the "valid thru" date on the Card has not passed, we may condition reimbursement upon return of the Card. The Card is our property.

XV. ASSIGNMENT AND WAIVER

We may assign these Terms and Conditions to a third party at any time without notice to you. However, if we assign these Terms and Conditions, the terms will remain substantially and materially the same unless you are notified. In the event we reimburse you for a refund claim you have made for a lost or stolen Card, or if we otherwise provide you with a credit or payment with respect to any problem arising out of any transaction made with the Card, you are automatically deemed to assign and transfer to us any rights and claims, excluding tort claims, that you have, had or may have against any third party for an amount equal to the amount we have paid to you or credited to your Card. You agree that you will not pursue any claim against, or reimbursement from, such third party for the amount that we paid or credited to your Card, and that you will cooperate with us if we decide to pursue the third party for the amount paid or credited. Neither our failure to exercise any of our rights under these Terms and Conditions, nor our delay in enforcing or exercising any of our rights, shall constitute a waiver of such rights. Furthermore, if we waive any right under these Terms and Conditions on one occasion, such waiver shall not operate as a waiver as to any other occasion.

XVI. APPLICABLE LAW

This agreement is governed exclusively by the laws of the State of Delaware.

XVII. LIMITATION OF LIABILITY

You agree that we have no liability with respect to any merchandise or services you purchase, or for any direct, indirect or consequential damages with respect to your use of the Card.

XVIII. ARBITRATION OF DISPUTES

In the event of any past, present or future claim, dispute or controversy (whether based upon contract, tort, statute, common law or equity) between you and us arising from or relating to your Card, any prior Card you have had with us, the relationships which result from your Card or the enforceability or scope of this arbitration provision, of this Agreement or of any prior agreement, you or we may elect to resolve the claim, dispute or controversy by binding arbitration. This includes but is not limited to any claim, dispute or controversy that arises from or relates to (a) your Card; (b) the amount of Available Funds on the Card; (c) advertisements, promotions or oral or written statements related to the Card; (d) goods or services purchased with the Card; (e) any benefits and services related to the Card; and (f) your application for or activation of the Card.

IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. PRE-HEARING DISCOVERY RIGHTS AND POSTHEARING APPEAL RIGHTS WILL BE LIMITED. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CARDHOLDERS WITH RESPECT TO OTHER CARDS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY ("Class Action Waiver"). Notwithstanding anything else to the contrary in this arbitration provision, only a court, and not an arbitrator, shall determine the validity and effect of the Class Action Waiver. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit, and nothing undertaken therein shall constitute a waiver of any rights under this arbitration provision.

Any arbitration hearing will take place in the federal judicial district where you reside. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and shall be authorized to award all remedies permitted by the substantive laws that would apply if the action were pending in court. If requested by any party, the arbitrator shall write an opinion containing the reasons for the award. The arbitrator's decision will be final and binding except for any appeal rights under the FAA and except that if the amount in controversy exceeds $100,000.00, any party may appeal the award within 30 days to a three-arbitrator panel, which shall review the award de novo. Unless applicable law provides otherwise, the appealing party will pay the cost of the appeal, regardless of its outcome. However, we will consider in good faith any reasonable request for us to bear the fees charged by the arbitration administrator and the arbitrators in connection with the appeal. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction.

Our rights and obligations under this arbitration provision shall ensure to the benefit of and be binding upon our parent corporations, subsidiaries, affiliates (including, without limitation, DFS Services LLC), predecessors, successors, assigns, as well as the officers, directors and employees of each of these entities, and will also ensure to the benefit of any third party named as a co-defendant with us or with any of the foregoing in a claim which is subject to this arbitration provision. Your rights and obligations under this arbitration provision shall inure to the benefit of and be binding upon all persons contractually liable under this Agreement. This arbitration provision shall apply regardless of whether the "valid thru" date on your Card has passed.

If any part of this Arbitration of Disputes Section is deemed invalid or unenforceable under any principle or provision of law or equity, it shall not invalidate the remaining portions of this Arbitration Agreement each of which shall be enforceable regardless of such invalidity, except that if the Class Action Waiver set forth above in the Arbitration of Disputes section is invalidated in any proceeding in which you and we are involved, then the Arbitration of Disputes section will be void with respect to that proceeding.

©2010 Discover Bank, Member FDIC

 

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