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THIS BUSINESS TO BUSINESS PREPAID PRODUCT PURCHASE AGREEMENT (this "Agreement"), is by and between INCOMM DIGITAL SOLUTIONS, LLC, a Delaware limited liability company, with its principal place of business at 250 Williams St, 5th Floor, Atlanta, GA 30303 ("InComm"), and the entity registering to purchase Prepaid Items and electronically agreeing to the terms of this Agreement ("Buyer") (each of InComm and Buyer, a "Party", collectively, the "Parties").
Purchase of Prepaid Items.
Access Information.
Restatement of Representations and Warranties. Buyer acknowledges and agrees that each submission of an Order to InComm shall constitute a restatement and renewal of each and every representation and warranty made by Buyer hereunder as fully as if made on the date such Order is submitted to InComm.
Disclosures. Buyer shall ensure that all disclosures, terms and conditions, redemption instructions and any other such materials relating to the Prepaid Items (the "Terms") that have been provided to Buyer by InComm, as requested by the Prepaid Item Provider, are provided to each person that receives a Prepaid Item ("Recipient") at the time a Prepaid Item is delivered to such Recipient.
Promptly upon a Party having actual knowledge of any loss, theft or damage related to, or arising out of, the Prepaid Items, the Activation or redemption of the Prepaid Items, the unauthorized issuance or attempted issuance of the Prepaid Items, or any fraudulently Activated Products or attempts to fraudulently Activate Products, it shall notify the other Party thereof, along with any related pertinent information. In connection with receipt of such notice, the Parties shall use commercially reasonable efforts to investigate the foregoing and to mitigate any harm therefrom (such as by de-Activating the related Product(s) as to any unused balance on the affected Product(s)). As between InComm and Buyer, the Parties acknowledge that liability for losses, including damage or destruction, with respect to the Prepaid Items shall be as follows:
InComm shall provide Buyer with designated InComm contacts, who will provide Buyer with customer support in connection with the Orders. Buyer shall be responsible for any direct customer service support for Recipients; however, Buyer shall promptly notify InComm of any inquiries or complaints it receives from Recipients arising out of any distribution of Prepaid Items and Buyer shall not, and shall not permit any third party to, make any representations on behalf of or concerning any Prepaid Item Provider.
Buyer acknowledges that the providers of the Prepaid Items ("Providers") may impose on Buyer certain requirements for the purchase, use and/or marketing or merchandising of the Prepaid Items, including, but not limited to, providing to Recipients the Terms (collectively, "Provider Requirements"). Buyer acknowledges that the Provider Requirements may be modified from time to time. Buyer will ensure each Recipient receives, materials provided by InComm and/or Provider to ensure compliance with Applicable Law and Provider Requirements. All merchandising or marketing materials created or used by Buyer or a Corporate Client (as defined in Section 16 below) in connection with the Prepaid Items must be approved by InComm and/or Provider. Buyer acknowledges that it may be required to complete and execute specific marketing agreements or other agreements as required by certain Providers in order to be eligible to purchase certain Prepaid Items.
Buyer hereby authorizes InComm and its agents to access all credit and other financial information relating to Buyer, and authorizes any third party possessing such information, including, without limitation, any credit reporting agency, to release the same to InComm or its agents.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to that state's conflict of laws principles, and the Parties hereby irrevocably and unconditionally consent and submit to the personal jurisdiction of the United States District Court in the Southern District of Florida over all matters relating to this Agreement. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein.
No action, claim, or proceeding by Buyer arising under or by reason of this Agreement or the purchase of the Prepaid Items pursuant to an Order shall be commenced or made by Buyer against InComm after the expiration of twelve (12) months from the date upon which the Prepaid Items described in such Order are first delivered to the Delivery Address.
Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party and/or its suppliers (collectively, "Confidential Information"). All Confidential Information will remain the sole property of the disclosing Party. Each Party will maintain the strict confidentiality of the Confidential Information of the other Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the parties herein relating to this Agreement, and neither Party will disclose Confidential Information to any third party without the prior written consent of the disclosing Party. The following shall not be deemed Confidential Information:
Miscellaneous.
In the event Buyer has agreements with corporate clients (each, a "Corporate Client") and manages or supports the loyalty, award, or promotional programs of such Corporate Clients ("Corporate Client Loyalty Programs") for which Buyer wishes to distribute or have distributed the Prepaid Items, Buyer hereby agrees to the following additional terms and conditions.
Under the Electronic Signatures in Global and National Commerce Act ("E-Sign"), this Agreement is legally binding in the same manner as are hard copy documents executed by hand signature. This Agreement shall be governed by the provisions of E-Sign.