Talech Terms of Service
These Terms of Service (this “Agreement”) is a legal agreement between you and the entity you are authorized to represent (collectively the “Company”) and Talech, Inc. in the United States of America or Elavon Canada Company in Canada (collectively, “talech”) related to the Company’s use of talech’s payment solution application (the “talech Application”) or Gift Card Services (as defined below). In order to use the talech Application or Gift Card Services, Company must first enter into a separate services agreement with Elavon, Inc., if Company is located in the United States of America, or Elavon Canada, if Company is located in Canada (collectively, “Elavon”) or other participating processor (the “Services Agreement”) that governs the provision of transaction processing services. This Agreement governs only Company’s access to and use of the talech Application or Gift Card Services and does not apply to Elavon’s or another processor’s provision of transaction processing services to Company. If the Company is receiving processing services from Elavon, in the event this Agreement conflicts with the terms of the Services Agreement or any other agreement with Elavon, the terms of this Agreement will control.
LICENSE AND GENERAL USE RESTRICTIONS
Talech hereby grants to Company a limited, nonexclusive, revocable, non-transferrable, non-assignable license to use the talech Application in the United States of America and Canada for the sole purpose of accessing the talech online payment solution (the “Payment Solution”); provided that Company shall not make or distribute copies of the talech Application or use the talech Application outside the United States of America and Canada. Without limiting the generality of the foregoing, any access to the talech Application or the services accessible through the talech Application by automated inquiry devices, robots, or repetitive data gathering and extraction tools, routines, scripts or other mechanisms with similar functionality is expressly prohibited. For clarity, the license granted to Company herein does not include any right to make or distribute copies of the talech Application, to use the talech Application for the benefit of any third party or to monetize use of the talech Application. The Payment Solution is accessible through the talech Application only with a valid account number, user identification, and password and only after execution of a separate Services Agreement with Elavon or a services agreement with an alternative processor. Company agrees not to associate, input or upload to or through any talech Application any virus, Trojan horse, worm, time bomb or other computer programming routines that (i) are intended to damage, interfere with, intercept or expropriate the Payment Solution or technology or (ii) infringe the intellectual property rights of another.
TERM AND TERMINATION
This Agreement shall remain in full force and effect until terminated as provided herein (the “Term”). Company may terminate this Agreement for convenience at any time by deleting the talech Application from all devices on which the Application is installed that Company owns or controls. Talech may terminate this Agreement for convenience at any time. Notwithstanding the foregoing, with respect to Company, this Agreement shall immediately terminate without any further action needing to be taken by talech (1) upon a breach by Company of the “INTELLECTUAL PROPERTY” or “WARRANTY/DISCLAIMER OF WARRANTIES” sections of this Agreement; (2) any breach of applicable law by Company in connection with Gift Cards or Gift Card Services; (3) in the event of Company’s bankruptcy, commencement of bankruptcy, winding-up, dissolution, liquidation or any other voluntary or involuntary bankruptcy or insolvency proceeding with respect to Company, or if Company shall have a receiver, administrator, administrative receiver, liquidator, trustee, agent, custodian or other similar official appointed or shall pass a resolution for winding up, or a court shall make an order to that effect; or (4) if Company otherwise ceases or threatens to cease carrying on business. Upon the termination of this Agreement for any reason whatsoever, all licenses granted hereunder shall immediately terminate and Company shall immediately cease and desist from all access to and use of the talech Application or the Gift Card Services, and shall immediately delete the talech Application from all of the Company’s devices. The terms set forth in the following sections of this Agreement shall survive the termination of this Agreement for any reason: “INTELLECTUAL PROPERTY”; “WARRANTY/DISCLAIMER OF WARRANTIES”; “LIMITATION OF LIABILITY”; “CHOICE OF LAW AND FORUM”, “MISCELLANEOUS”, “ENTIRE AGREEMENT/THIRD PARTY BENEFICIARY, and indemnity terms under “GIFT CARD SERVICES.”
MODIFICATIONS OF AND ACCESS TO THE TALECH APPLICATION
Talech reserves the right to modify or discontinue the talech Application or services accessible through the talech Application in talech’s sole discretion with or without notice to the Company. Talech will not be liable to the Company or any third party should talech exercise its right to modify or discontinue the talech Application or any services accessible through the talech Application.
MODIFICATION OF THESE TERMS
From time to time, talech may change the terms of this Agreement. Such changes will be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the talech Application, by electronic or conventional mail, or by any other means by which Company obtains notice thereof. Company’s continued use of the talech Application or the Gift Card Services following the posting of changes to this Agreement indicates Company’s acceptance of those changes. Unless talech provides the Company with specific notice, no changes to the terms of this Agreement will apply retroactively.
Company acknowledges that talech and its licensors own all right, title and interest in and to the talech Application and the Platform (as defined below), and software code therein, including, without limitation, all intellectual property rights therein. Company agrees to not remove, obscure, or alter any copyright, trademark, or other proprietary rights notice affixed to, contained within, or accessed in conjunction with or through the talech Application.
SUPPORT AND MAINTENANCE
Talech is not obligated to provide any support or maintenance services to Company related to the talech Application. Any complaints, questions, or claims related to the talech Application can be addressed to talech, 410 Cambridge Avenue, Floor 2, Palo Alto, California 94306, or by contacting talech at 1-888-995-1998 or firstname.lastname@example.org (US) or email@example.com (Canada).
EXPORT CONTROL LAWS
Company agrees to comply with all United States, Canada and all other applicable laws, rules, and regulations relating to the export, re-export, or transshipment of the talech Application.
WARRANTY/DISCLAIMER OF WARRANTIES
COMPANY HEREBY REPRESENTS AND WARRANTS THAT (I) COMPANY IS NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. OR CANADIAN GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; AND (II) COMPANY IS NOT LISTED ON ANY U.S. OR CANADIAN GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES, OR OTHERWISE SUBJECT TO TRADE SANCTIONS. COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE TALECH APPLICATION IS ENTIRELY AT THE COMPANY’S OWN RISK. THE TALECH APPLICATION IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, CONDITIONS OR GUARANTEES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, ACCESSIBILITY AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED BY TALECH TO THE FULLEST EXTENT PERMITTED BY LAW. TALECH MAKES NO WARRANTY, CONDITION OR GUARANTEE THAT THE TALECH APPLICATION WILL MEET COMPANY’S REQUIREMENTS, OR THAT THE TALECH APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES TALECH MAKE ANY WARRANTY, CONDITION OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TALECH APPLICATION OR AS TO THE COMPLETENESS, ACCURACY, CURRENCY, OR RELIABILITY OF THE TALECH APPLICATION OR ANY INFORMATION OBTAINED THROUGH THE TALECH APPLICATION OR THAT DEFECTS IN THE TALECH APPLICATION WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO EVERY COMPANY. COMPANY AGREES AND ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, WARRANTY, CONDITION OR GUARANTEE PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE. COMPANY ACKNOWLEDGES, IN THE EVENT OF ANY THIRD PARTY CLAIM THAT THE TALECH APPLICATION OR THE COMPANY’S POSSESSION AND USE OF THE TALECH APPLICATION INFRINGES THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, TALECH IS NOT RESPONSIBLE FOR THE INVESTIGATION, DEFENSE, SETTLEMENT OR DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY INFRINGMENT CLAIM.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TALECH DOES NOT ASSUME ANY RESPONSIBILITY AND, SHALL NOT BE LIABLE FOR, ANY DAMAGE TO, OR VIRUSES THAT MAY INFECT, COMPANY’S OR THIRD PARTIES’ EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, DEVICES USED TO ACCESS THE PAYMENT SOLUTION OR GIFT CARD SERVICES. TALECH SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE), RESULTING FROM THE USE OR THE INABILITY TO USE THE TALECH APPLICATION OR GIFT CARD SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF COMPANY’S TRANSMISSIONS OR DATA, EVEN IF TALECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF TALECH FOR ANY DAMAGES (DIRECT OR OTHERWISE), PENALTIES OR LOSS, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE OF ANY TYPE EXCEED, IN THE AGGREGATE, FIVE HUNDRED UNITED STATES OR CANADIAN DOLLARS (USD OR CAD $500), AS APPLICABLE, ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY WAIVED BY COMPANY. THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF TALECH OR IN THE EVENT OF PERSONAL INJURY OR DEATH OR IN RESPECT OF ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
CHOICE OF LAW AND FORUM; ARBITRATION
Jurisdiction and Venue; Governing Laws. For all disputes relating to the enforceability of the arbitration agreement set forth below, or to the extent the arbitration agreement set forth below is determined to be unenforceable or inapplicable to any claim, controversy or dispute between the Company and talech, whether sounding in contract, tort or otherwise, then, if Company is located in the United States of America, this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, United States of America, and if Company is located in Canada, this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, in each case excluding (1) its conflict of law principles; (2) the United Nations Convention on Contracts for the International Sale of Goods; (3) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (4) the Protocol amending the 1974 Convention, done at Vienna, April 11, 1980. If Company is located in the United States, then each party hereby submits to the exclusive jurisdiction of the courts of the state of Georgia (Fulton County) or the United States District Court for the Northern District of Georgia with respect to any such claim, controversy or dispute. If Company is located in Canada, then each party hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario located in the City of Toronto. The parties each waive any objection to venue with respect to any actions brought in those courts.
Arbitration (United States). If Company is located in the United States, then all claims, controversies or disputes between the parties arising out of or related to the Agreement or the relationship between the parties will be submitted to and decided by arbitration held in the city and state in which the Company maintains its principal place of business and in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (a copy of which can be reviewed at www.adr.org) except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the state in which the arbitration is conducted and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The arbitrator will have the authority to award any remedy or relief that a federal court in the state in which the arbitration is conducted could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide on talech’s or the Company’s claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own attorney’s fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, talech will bear all administrative cost of the arbitration including the arbitrator’s fees and will reimburse the Company’s filing fee if the Company initiates the arbitration. The parties agree that the underlying agreement between the parties involves interstate commerce and that, notwithstanding the choice of law provision above, any arbitration will be governed by the Federal Arbitration Act.
Arbitration (Canada). If Company is located in Canada, then all claims, controversies or disputes arising out of, or in connection with, this Agreement, or in respect of any legal relationship associated with it or derived from it, will be finally resolved by arbitration administered by the Alternative Dispute Resolution Institute of Canada Inc. under its ADRIC Arbitration Rules (a copy of which can be reviewed at http://adric.ca/arbrules/ ), except that the arbitration proceeding will be conducted before one neutral arbitrator who will be an active member of the bar of the Province of Ontario and actively engaged in the practice of law for at least 10 years and who will issue a reasoned award. The seat of arbitration will be Toronto, Ontario. The language of the arbitration will be English. The arbitrator will have the authority to award any remedy or relief that a provincial court in the Province of Ontario could order or grant. The arbitrator will have no authority to decide claims on a class action or collective action basis. The arbitrator can only decide talech’s or the Company’s claims and may not consolidate or join the claims of other persons who may have similar claims. No party to this Agreement may assert a claim in arbitration on behalf of any third party or represent any class of claimants in an arbitration brought pursuant to the Agreement. While each party will bear its own legal fees incurred in the arbitration proceeding, absent a contrary determination by the arbitrator as set forth in a reasoned award, Elavon will bear all administrative cost of the arbitration including the arbitrator’s fees and will reimburse the talech’s filing fee if the Company initiates the arbitration.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Talech’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by talech in writing. Company and talech agree that any cause of action arising out of or related to this Agreement or Company’s use of this talech Application must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The section titles and headings in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
This Agreement is entered into for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties.
This Agreement may be assigned by talech, but may not be assigned by Company, directly or by operation of law, without the prior written consent of talech. If Company, nevertheless, assigns or purports to assign this Agreement without talech’s consent, this Agreement will be binding on the assignee as well as Company. Elavon Canada Company may subcontract some or all of its obligations hereunder to talech, Inc. and Company acknowledges and agrees to such subcontracting. Company may not subcontract any of its obligations hereunder without the prior written consent of talech.
To the full extent permitted by law, the parties declare that they have required that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only.Les parties déclarent qu’elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou l’avenir, soient rédigés en langue anglaise seulement. To the full extent permitted by law and consistent with valid entry into a binding agreement, the controlling language of this Agreement is English and translations have been provided for convenience only. To the full extent permitted by law, all correspondence and communications between Company and talech under this Agreement must be in the English language.
This Agreement constitutes the entire and only agreement between the parties in relation to its subject matter and replaces and extinguishes all prior or simultaneous agreements, undertakings, arrangements, understandings or statements of any nature made by the parties or any of them whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the parties acknowledge that they are not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of the fraud or fraudulent misrepresentation of another party. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of talech.
The following terms of this Agreement apply if Company accesses the Application from the Apple App Store. Talech and Company acknowledge that this Agreement is not entered into with Apple, Inc. or any subsidiary thereof (collectively, “Apple”), and Apple is not responsible for the talech Application or content thereof including any information or content received through the talech Application or the services accessible through the talech Application. The license to the Application is limited to use of the Application on any Apple branded products that Company owns or controls and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Company acknowledges and agrees that (i) Apple is not, obligated to provide any support or maintenance services to Company related to the talech Application; (ii) Apple has no warranty obligation whatsoever with respect to the talech Application; (iii) in the event of any third claim that the talech Application or the Company’s possession and use of the talech Application infringes that third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; (iv) to the extent permitted by law, Apple will not be liable to Company for any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the talech Application; and (v) Apple is not responsible to Company for any claim relating to the talech Application or Company’s possession and/or use of the talech Application, including but not limited to, (a) product liability claims, (b) any claim that the talech Application fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Apple and Apple’s subsidiaries are designated third party beneficiaries of this Agreement and may enforce this Agreement against Company as a third party beneficiary, and the benefits of the terms of this paragraph will be held in trust by talech. Subject to the rights of Apple to enforce this Agreement as a third party beneficiary, a person who is not a party to this Agreement has no right under any applicable law to enforce any term of this Agreement.
GIFT CARD SERVICES
The following terms of this Agreement describe certain Gift Card Services that are available to Company if it has been approved by talech to receive Gift Card Services.
Definitions for Gift Card Services
“Customer” means a client of Company who elects to conduct a payment transaction with Company through presentation of a payment device.
“Customer Data” means any information or data related to a Customer, including personal information, personally identifying information and information about a Customer’s purchase transactions at Company.
“Gift Card” means a special card, code or device purchased by or provided to a Customer (including any promotional card, code or device) that is redeemable for merchandise, or other transactions or services with Company.
“Gift Card Services” means Gift Card program setup and services as described below provided by talech to Company.
“Platform” means the systems hosted directly or indirectly by talech through which (i) Company establishes its Gift Card program, and (ii) the Gift Card Services are provided to Company.
“Supported Hardware” means the equipment, systems and hardware, including point of sale devices, necessary for Company to make use of Company’s selected Gift Card Services.
“Web Portal” means a web-based portal provided by talech through which Company may obtain information and guides pertaining to the Gift Card Services and Platform, and may access Company-specific program metrics via dashboards, view information about a Customer’s purchase transactions at Company, create additional Customer offers and retrieve reports regarding Company’s Gift Card program.
FEATURES AND REQUIREMENTS
Overview of Gift Card Services. Company has elected to receive from talech the Gift Card Services. Talech delivers the Gift Card Services through the Platform. Company’s access to and use of the Gift Card Services and the Platform are subject to the Agreement and the materials made available to Company by talech that relate to the Gift Card Services, including any quick reference guides and best practices guides.
Web Portal and Customer Portal. Talech will provide Company with access to the Web Portal. Company will review and to comply with any materials made available by talech through the Web Portal from time to time in connection with Company’s use of the Gift Card Services and its operation of its Gift Card program. Talech also provides a Customer portal through which a Customer may check the balance of his or her Gift Card.
- Talech will host and make available to Company the Web Portal.
- Company must use Supported Hardware in order to make full use of the Gift Card Services, and certain or all Gift Card Services may be unavailable or may function improperly if Company does not use them in connection with Supported Hardware. Company may obtain a current list of Supported Hardware from talech upon request, which talech may update from time to time. Talech will have no responsibility or liability in connection with the performance or non-performance of the Gift Card Services, including in connection with any errors or malfunctions that may occur in connection with the Gift Card Services, if Company uses the Gift Card Services with any Point of sale devices that are not Supported Hardware.
- Company will not acquire any intellectual property rights or any goodwill, know-how or any other proprietary rights in any form whatsoever or howsoever in the Platform or the Gift Card Services. All intellectual property rights in and to the Platform or the Gift Card Services, and related goodwill, know-how and other proprietary rights are and will remain the absolute exclusive property of talech or its licensors.
- Company will (i) cooperate with talech in connection with the Gift Card Services, and (ii) provide talech with reasonably requested information and access (which may be remote access) to equipment and to Company’s personnel for purposes of facilitating setup of point of sale devices for use in connection with the Gift Card Services.
- Company will use all reasonable means to prevent any unauthorized access to or use of the Platform and the Gift Card Services, and if such access or use occurs, Company will notify talech immediately.
- Company acknowledges and agrees that it is Company’s sole responsibility to comply with all laws applicable to the Gift Cards, including those relating to the sale, distribution, redemption, expiry and escheat of Gift Cards (including promotional cards) and related balances, (including all laws relating to purchase, service and dormancy fees, laws relating to money transmission, and laws relating to consumer protection), specifically including the Prepaid Access Rule (31 CFR Parts 1010 and 1022), all other rules promulgated and guidelines published by the Financial Crimes Enforcement Network division of the United States Department of the Treasury, and all applicable territorial, provincial and federal laws in Canada. Talech does not provide legal advice with respect to compliance with laws, and Company should consult its own legal counsel if it has questions regarding compliance. Companies located in jurisdictions that do not allow service fees (e.g., Arizona, New York) will not charge a service fee with respect to Gift Cards.
- Company acknowledges and agrees that talech has no responsibility for recording or storing any Customer Data or information related to the sale of any Gift Card until such information has been received and validated by talech.
- Company understands and agrees that its data security obligations under the Agreement apply to any Customer Data it collects or receives in connection with the Gift Card Services, and Company agrees to comply with such data security obligations with respect to all Customer Data Company may collect, access or receive in connection with the Gift Card Services.
- Company will exclusively use talech (including talech-designated service providers) for Gift Card Services similar to the Gift Card Services, and Company will not receive Gift Card Services similar to the Gift Card Services from any third parties not approved by talech in writing.
- TALECH IS NOT RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR USE OF ANY GIFT CARD. FURTHER, TALECH MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OR PROFITABILITY FOR COMPANY OF ANY GIFT CARD ARRANGEMENT OR SOLUTION ADOPTED BY COMPANY IN CONNECTION WITH ITS GIFT CARD PROGRAM, EVEN IF TALECH PROMOTES SUCH A SOLUTION AS COMMON OR HISTORICALLY SUCCESSFUL IN COMPANY’S INDUSTRY OR MARKET.
- Company will indemnify talech and each of its officers, directors, shareholders, agents, servants, successors, and assigns from all claims, liability, damage or loss, including reasonable attorney’s or legal fees and disbursements on a solicitor and client basis, arising out of the use of the Gift Card Services by Company or the issuance of Gift Cards by Company. The indemnities and obligations herein will survive termination of this Agreement.
- If a particular location closes or changes its Merchant Identification Number (MID), then talech may bill any open location for any fees associated with subsequent transactions processed on Gift Cards activated by the closed MID. This would apply to any system generated transactions, including deduction transactions. Monthly fees billed for Gift Card Services provided with respect to the closed location may also be billed to any open location.
Important: No E-Mail Marketing to Customers
Company will not use any e-mails addresses Company collects in connection with gift cards for marketing purposes without customers affirmative consent (i.e., separate sign-up or “opt-in”).
Processing Gift Card Transactions
In connection with processing Gift Card transactions, Company must comply with the following requirements:
- Supply talech with all information and data required by talech to perform Gift Card Services related to Company’s acceptance of Gift Cards, including the location of point of sale devices and Customer Data.
- Maintain all transaction receipts and any other receipts as required by laws.
- Establish procedures to verify the identity of a person who purchase Gift Cards worth $10,000 or more during any one day and obtain identifying information concerning such a person, including name, date of birth, address, and identification number. Company must retain such identifying information for five years from the date of the sale of the Gift Cards.
- Ensure that no fees or expiration dates apply to the Gift Cards.
- When Company sells a Gift Card from its physical location or locations, including sales completed via electronic commerce, Company is responsible for the collection and settlement of all funds relating to the sale of the Gift Card, including processing costs associated with such purchase (such as any credit card transaction fees or bank service fees, where applicable).
- Company agrees that all Gift Cards will be printed by talech or a talech-approved vendor.
Gift Card Processing Gift Card Services
- Electronic processing of transactions and purchases made by Customers using Gift Cards. Talech will confirm electronically that the Cardholder presenting the Gift Card for the purchase of goods or Gift Card Services through Company has an active Gift Card account on the Platform and that there is sufficient value associated with the Gift Card to allow the Customer to complete the purchase. Talech will adjust the Customer’s Gift Card account through either a debit or credit, as applicable, in the amount of any approved transaction.
- Transaction Record Maintenance. Talech will maintain an accessible electronic record of the transactions conducted using a Gift Card for the lifetime of the card balance and after the balance on the card has been depleted for a period not less than sixty (60) days.
- Downtime. Company will not process Gift Card transactions if the Company’s system, the Platform, or Gift Card Services is down and not able to verify the validity and available balance on a Gift Card. Company will be solely liable for any losses or damages incurred if Company processes a Gift Card transaction without receipt of such verification.
Electronic Gift Card Artwork
Electronic Artwork. If applicable, Company is responsible for submitting electronic artwork to talech/Elavon for approval, as described in the Graphic Specifications and Procedures manual provided separately by talech (as it may be updated from time to time, the “Graphic Specifications and Procedures”). Company understands that the card proof cannot be created without the submission of artwork, if requested or required. Company will comply with the Graphic Specifications and Procedures. Failure to submit artwork or comply with the Graphic Specifications and Procedures may result in additional fees charged to Company for design work performed to correct the artwork and will result in the delay of the card production process. Talech cannot be held responsible for the quality of cards produced using artwork that does not meet the Graphic Specifications and Procedures. Digital artwork should be submitted to:
Attn: Boarding – LGB
7300 Chapman Highway
Knoxville, TN 37920
When sending in artwork, please include:
- Company name and MID
- Indicate standard or custom card order
- Name and telephone number of graphic contact should there be any questions or issues with the artwork submitted
For complete detailed specifications, please send a request for Graphic Specifications and Procedures to Artwork@Elavon.com In the request, please indicate either standard card or custom card specifications.
Proofing and Production Procedure. Proofs for custom card orders are provided electronically and sent to the e-mail provided. Please print the proof, sign and fax back pursuant to the instructions on the proof. One proof is included in the card production costs. Each additional proof will be billed at thirty-five dollars ($35) each. All proofs for standard card orders are provided electronically as an Adobe pdf document. The proof will be sent to the e-mail address then currently on file with talech. If the proof is acceptable, simply reply to the e-mail and indicate approval. Provide detailed information if changes are required. In some instances Company may also receive a printer’s proof and will be required to follow the instructions included with the proof. IMPORTANT: Incorrect graphics WILL delay an order. After Company approves the proof, normal production timeframe for card delivery is 4-5 business days for standard cards and two weeks for custom cards (fewer than 50,000).