Customer Terms and Conditions
Last Revised: 20 August 2017
KISSGC SOLUTIONS INC., KISSGC (“us”, “our”, “we”) offers an application, which allows consumers to load and spend monies on Merchant cards and to send e-gifts and to receive loyalty plans, rewards, coupons or points from specified Merchants through a mobile device application (the “Application”). These Terms and Conditions (“Terms”) govern your download and use of the Application and your access and use of the Application. “You” or “Customer” means any individual or entity that downloads or uses the Application. Please read these Terms carefully. These Terms govern your download and use of the Application. You must accept these Terms prior to downloading or using the Application. By clicking “ACCEPT” or in any other way downloading or using the Application, you signify your assent to these Terms. If you do not accept these Terms, do not click “ACCEPT” and do not use the Application. If you do not agree to any of these Terms, please do not download or use the Application.
License. Subject to the terms and conditions hereof, KISSGC grants you a non-exclusive license to use the Application, including any documentation files accompanying the Application (“Documentation”) and any upgrades, modified versions or updates of the Application which may be provided to you. The use of the Application and Services is currently free of charge. KISSGC may, however, begin charging for the Application or the Services by providing you with reasonable advance notice.
Application. The Application allows you to load your merchant’s card via credit card, send and receive e-gifts and receive loyalty plans, rewards, points and coupons as well as other promotional, marketing and advertising content (all of the foregoing, “Content”) to your mobile device (a “Device”). KISSGC makes no warranties regarding the Application or the availability thereof, and KISSGC may choose to modify the Application or cease provision thereof at any time, in its sole discretion, in which event any loyalty plans, rewards, coupons or points which you have collected may cease to be available or valid. You understand that KISSGC is making the Application available to you without charge and, as such, you shall have no claims against KISSGC for the temporary or permanent unavailability of any Content.
KISSGC Account. To use the Application, you must create an account. KISSGC reserves the right to refuse to allow a user to open an account for any reason, or to limit the number of accounts a user can establish. Your account username is your identity. You may not select a username that is used by someone else, and your username cannot be indecent, or otherwise offensive, or be used in any way that violates these Terms or applicable law. All information provided in creating an account must be truthful and accurate, and you represent and warrant that you have all rights necessary to provide such information, including any information in respect of the Device. KISSGC may, for any reason in its sole discretion, terminate or suspend your account. Grounds for such termination may include (i) extended periods of inactivity, (ii) KISSGC’ reasonable belief that the letter or spirit of these Terms have been violated, (iii) KISSGC’ reasonable belief that fraudulent or illegal behaviour has occurred, or (iv) KISSGC’ reasonable belief that behaviour that is harmful to other users, third parties, or our business interests has occurred.
Security. You represent and warrant that you have full rights to register any Device for which you have submitted registration information to KISSGC. You should ensure that your KISSGC username and password (or other login information) are secure. Your balance, loyalty plans, rewards, coupons and points are at risk if you let someone use your account inappropriately. KISSGC will not ask you to reveal your password. If you forget your password, you can request to have a new password sent to your registered e-mail address. You agree to immediately notify KISSGC of any unauthorized use of your account or password. KISSGC WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGE ARISING FROM UNAUTHORIZED USE OF YOUR ACCOUNT OR PASSWORD, and you agree to indemnify and hold KISSGC harmless for any improper or illegal use of your account.
Promotional Material. By specifying any individual Merchant (a “Merchant”) through the Software, you consent to receiving Content from such Merchant. All Content is provided by Merchants that you have selected and, as such, KISSGC disclaims all responsibility and liability for Content. Specifically, you acknowledge that KISSGC is not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to any Content, and is no way is KISSGC responsible to provide any loyalty plans, rewards, coupons or points on behalf of any Merchant. MERCHANTS ARE THE SOLE PARTIES RESPONSIBLE FOR CONTENT AND FOR PROVIDING ANY LOYALTY PLANS, REWARDS, COUPONS OR POINTS. Further, you understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you hereby agree to waive, and do waive, any legal or equitable rights or remedies you have or may have against KISSGC in this respect. You agree to abide by the terms and conditions that any Merchant may impose on any loyalty plans, rewards, coupons or points provided by such Merchant, and you shall fully indemnify KISSGC for your violation of any such terms and conditions.
Intellectual Property. You have no ownership rights in the Application. Rather, you have a limited license to use the Application subject to these Terms. Ownership of the Application, Documentation and all intellectual property rights therein and thereto shall remain at all times with KISSGC or its licensors. All rights not expressly granted to you herein are reserved to KISSGC. You may not remove any proprietary notice of KISSGC or its licensors from the Application, Documentation, or Content or any copy or component thereof. All copyright notices must be retained at all times.
Restrictions. You shall maintain all copyright and other proprietary notices contained in the Application, including all commercial logos. Except as set forth expressly herein, you shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Application; (b) circumvent, disable, or otherwise interfere with security-related features of the Application or any Content; (c) modify the Application or any Content, or insert any code or product, or in any other way manipulate the Application or any Content; or (d) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Application or any Content except as expressly permitted by these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform us in writing in each instance prior to engaging in the activities set forth above.
Usage Restrictions. In making use of the Application or any Content, you may not, directly or indirectly, (a) violate the legal rights of others, including defaming, abusing, stalking or threatening users or infringe our or any third party’s intellectual property rights, moral rights, or other rights; (b) commit an action that is (or we reasonably believe to be) illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or we reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (c) commit any action that does not comply with all applicable laws, rules, or regulations, including not obtaining all necessary permits, licenses, or registrations or that would cause us to be in violation of any law or regulation, or to infringe any right of any third party; or (d) use or access another user’s account or password without permission or under false pretences.
Indemnification. You shall indemnify KISSGC, its affiliates, employees, officers, directors and agents from and against any and all third party allegations (even though such allegations may be false, fraudulent or groundless) asserted in any claim, action, lawsuit, investigation or proceeding, whether actual or alleged, arising out of or related in any way to (i) a breach by you of these Terms; (ii) your use of the Application or any Content in a manner that may violate any third party intellectual property, moral or contractual rights; or (iii) your use of the Application or any Content in violation of any law, regulation or court order. Your choice of counsel retained for purposes under this section must be reasonably satisfactory to KISSGC. You may not settle or compromise claims that impose any obligation on KISSGC or that may affect KISSGC’ rights in any way without KISSGC’ prior written consent. KISSGC’ may participate in the defence of all claims with counsel of its own choice at its own expense.
No Warranty. THE APPLICATION, DOCUMENTATION AND ALL CONTENT ARE PROVIDED “AS-IS”. KISSGC EXPRESSLY DISCLAIMS ANY WARRANTIES (INCLUDING WITH REGARD TO THE PERFORMANCE OF THE APPLICATION OR THE SUBSTANCE OF THE CONTENTS) AND WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ANY RELIANCE ON THE APPLICATION OR THE CONTENT IS AT YOUR OWN RISK, AND KISSGC DOES NOT AND SHALL NOT ACCEPT ANY LIABILITY FOR THE APPLICATION OR THE CONTENT, INCLUDING WITHOUT LIMITATION THE UNAVAILABILITY OR MODIFICATION OF ANY LOYALTY PLANS, REWARDS, COUPONS OR POINTS, OR THE FAILURE OF ANY MERCHANT TO PROVIDE ANY PROMISED LOYALTY PLANS, REWARDS, COUPONS OR POINTS.
Limitation of Liability. KISSGC IS MAKING THIS APPLICATION AVAILABLE TO YOU WITHOUT CHARGE AND, AS SUCH, KISSGC SHALL NOT HAVE ANY LIABILITY ARISING OUT OF THE LICENSE, SUPPLY OR USE OF THE APPLICATION OR CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL KISSGC BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES), INCLUDING ARISING OUT OF THE MANUFACTURE, SUPPLY, SALE OR USE OF THE APPLICATION, EVEN IF KISSGC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
Termination. KISSGC may suspend or terminate your account, these Terms, and your use of the Application or any Content at any time if (i) you violate these Terms, including by using the Application or any Content in violation of any third party right or law, regulation or court order; (ii) KISSGC is unable to verify or authenticate any information you provide; (iii) such information becomes inaccurate; or (iv) KISSGC decides in its sole discretion to cease offering the Application or any Content. Upon termination, you must immediately cease all use of the Application and Documentation. Sections 4 (Security), 6 (Privacy), 7 (Intellectual Property), 8 (Restrictions), 9 (Usage Restrictions), 10 (Indemnification), 11 (No Warranty), 12 (Limitation of Liability) and this Section 13 shall survive the termination or expiration of this Agreement for any reason.
Miscellaneous. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof, provided that the use of any Content may be subject to additional terms provided by the applicable Merchant. These Terms may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. KISSGC may assign its rights or obligations pursuant to these Terms. Customer agrees not to assign any rights under these Terms; any attempted assignment shall be null and void and shall result in the termination of these Terms. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. These Terms shall be governed by the laws of the Province of British Columbia, and the competent courts in the city of Vancouver shall have exclusive jurisdiction to hear any disputes arising hereunder.