Last update: June 2020
In this Terms and Conditions (the “Terms”) “Givex” shall mean Givex Canada Corp., “Merchant” shall mean Smoothie King, and “you” and “your” mean an individual or corporate customer on the https://cws.givex.com/cws4.0/skcorp/ website (the “Site”). The products, including plastic gift card and/or e-certificates and re-loading additional value to gift cards (collectively, “Gift Card”) of the Merchant offered and sold on the Site are subject to the terms and conditions governing their purchase and use. The Terms are to be read by you together with any terms, conditions, disclaimers and policies provided on the Site.
You acknowledge that Givex may make changes to its system, policies, and the Terms at any time and any change becomes effective upon posting on the Site. You are responsible for reviewing the Terms each time you place an order or otherwise use the Site. If you do not agree to any change in the Terms, you must not use the Site or place an order. Any order placed after the effective date of a change will constitute your agreement to the change and to the current Terms.
On the Site the Merchant is the owner of the Merchant gift card program, and Givex is the owner of the Site, is the Merchant of Record, and is the Merchant’s service provider in connection with the sale of Gift Card and Gift Card services on the Site. If you place an order on the Site Givex will be the “Merchant of Record” for your purchase which means that you will be providing your payment information, email and/or shipping address, and any additional information required or requested to complete your order directly to Givex, and not to the Merchant, in order to enable Givex to process your payment and complete your order.
By placing an order on the Site, you understand and agree that: (i) you are dealing with and providing your information to Givex; (ii) Givex is entitled to verify and authenticate your payment information, and if it is unable to verify this information, Givex may contact you and/or your Payment Card issuer to confirm your identity and/or your intent to place the order; (iii) only a person of the age of majority in the jurisdiction where you live and who can form legally binding contracts under applicable law (or a legal guardian of a minor who authorizes the minor to purchase the Gift Card) may purchase a Gift Card on the Site; and (iv) by agreeing to these Terms and Conditions, you represent that you are at least the age of majority in the jurisdiction where you live, or that you are at least the age of majority in the jurisdiction where you live and you have given Givex your consent to allow any of your minor dependents to use the Site.
Payment Transaction Types Supported. You may opt for one-time, scheduled and recurring, or pre-authorized payment for loading and/or re-loading value to your Gift Card(s). You may purchase Gift Cards in a single transaction, series of transactions, and any number of Gift Cards, including bulk purchase. With respect to scheduled and recurring and pre-authorized payment transactions, Givex will permit you to authorize regular charges to your credit card (“Payment Card”) accepted on a payment card network such as Visa, MasterCard, Discover, or American Express (“Payment Card Network”) at regular intervals or when your Gift Card balance falls below your specified value threshold.
Purchasing. All orders of Gift Cards are subject to a process that verifies information provided by you for Payment Card authorization and fraud prevention. In order to purchase a Gift Card, you will need to provide certain information to Givex, including Payment Card and related payment and billing information. Givex or the Merchant may request further information to validate the transaction. In the act of providing such information, you warrant that all information provided by you is current, complete, and accurate. If there is a discrepancy, your Gift Card order may be delayed or held until the information can be verified. If the information cannot be adequately verified, your order may be cancelled at the discretion of Givex.
Delivery. If the date you selected for delivery of your Gift Card has passed and you have not received confirmation that the Gift Card was sent, please contact Givex’s Customer Support. Please have on hand your reference number or be ready to provide your email address. Neither Givex nor the Merchant is responsible for Gift Cards that are undeliverable or not received due to your failure to enter an accurate email (or shipping, if applicable) address or other relevant delivery information for the recipient. If plastic Gift Cards are offered by the Merchant and fulfilled by Givex, validated orders for plastic Gift Cards will be processed and shipped within 24 hours of order placement (excluding orders that have been placed after 8:00pm EST/EDT on Fridays until 7:30am EST/EDT Monday, which will be shipped within 24 hours of 7:30am EST/EDT Monday).
Billing. When you use a Payment Card for payment, the charges to your account for your order will be accompanied by a reference to “Givex” and the Merchant.
Returns. All sales are final. You may not return, cancel, or redeem for cash any Gift Card after it is purchased, unless otherwise stated by applicable law.
Risk of Loss. Gift Cards have monetary value and should be protected accordingly. Ownership and risk of loss of Gift Cards is transferred to the recipient of the Gift Card immediately upon completion of processing of your order. Neither Givex nor the Merchant is responsible for lost or stolen Gift Cards or the remaining balances on such Gift Cards.
Stolen or Compromised Gift Cards. If you suspect that your Gift Card has been copied, stolen, or compromised in any way, please contact Givex’s Customer Support. Compromised Gift Cards will not be replaced without your confirmation. Subject to confirmation by the Merchant or Givex, the remaining balance on a compromised Gift Card may be re-issued on a new Gift Card.
Chargebacks, Fraud Prevention and Void Transactions. For your protection, Givex may use various fraud prevention protocols and policies, and industry-standard verification systems, in an effort to reduce fraud and minimize chargeback risks. You must comply with such protocols and policies, including card authentication, and “ship to” and “bill to” address verification. Once an order is placed, you may not change any authenticated payment information or any verified “ship to”/“bill to” address. If there is a systemic error which results in the processing or acceptance of a transaction for which authorization has been declined, that transaction will be void.
Customer Support. Inquiries about your Gift Card order may be directed to Givex by contacting Givex Customer Support at support.givex.com or 1 (800) 962-4935. Please have on hand your reference number or be ready to provide your email address.
Internet Email. Any unprotected email communication over the Internet is, as with communication via any other medium (e.g., cellular phones, airmail), not confidential, subject to possible interception or loss, and is also subject to possible alteration. Givex is not responsible for and will not be liable to you or anyone else for any damages or losses in connection with email sent by you to Givex or email sent by Givex to you at your request or concerning your purchase.
No Endorsements. No endorsement or approval of any third parties or their advice, opinions, information, products or services is expressed or implied by any information, material and content provided on the Site.
Links/Software. Links from or to websites outside the Site are meant for convenience only. Givex does not review, endorse, approve, or control, and is not responsible for any sites linked from or to the Site, the content of those sites, the third parties named therein, or their products and services. Linking to any other site is at your sole risk and Givex, its parent, affiliates and subsidiaries will not be responsible or liable to you or anyone for any damages or losses in connection with linking. Links to downloadable software sites are for convenience only and Givex, its parent, affiliates and subsidiaries are not responsible or liable for any difficulties or consequences associated with downloading the software. Use of any downloaded software is governed by the terms of the license agreement, if any, that accompanies or is provided with the software.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. GIVEX PROVIDES ITS SERVICES ON THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GIVEX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE GIFT CARDS AND ANY OTHER PRODUCTS OFFERED, ORDERED OR SOLD ON THE SITE, THE MERCHANT GIFT CARD PROGRAM, THE PROVISION OF GIVEX’S SERVICES, THE INFORMATION OR CONTENT DISPLAYED ON OR ACCESSIBLE VIA THE SITE INCLUDING THE CHECKOUT PROCESS, OR OTHERWISE. YOU EXPRESSLY AGREE THAT YOUR USE OF GIVEX’S SERVICES IS AT YOUR SOLE RISK. GIVEX DOES NOT WARRANT THE ACCURACY, RELIABILITY, OR COMPLETENESS OF ANY PRODUCT IMAGES, DESCRIPTIONS OR SPECIFICATIONS PROVIDED ON THE SITE.
NEITHER GIVEX NOR THE MERCHANT NOR THEIR RESPECTIVE PARENTS, AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, VENDORS OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, FOR ANY LOSS OF DATA OR PROFITS, THAT MAY BE INCURRED OR RESULT IN CONNECTION WITH YOUR USE OF (OR INABILITY TO USE) THE SITE, GIVEX’S SERVICES, OR THE PRODUCTS PURCHASED ON THE SITE THROUGH GIVEX, REGARDLESS OF WHETHER THE CLAIM ASSERTED IS BASED ON CONTRACT, NEGLIGENCE, OR ANY THEORY OF LAW OR RECOVERY AND EVEN IF GIVEX OR THE MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT GIVEX IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS CONNECTED WITH YOUR USE OF THE SITE, GIVEX’S SERVICES OR ANY PRODUCT PURCHASED ON THE SITE THROUGH GIVEX, GIVEX’S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL VALUE OF THE APPLICABLE PURCHASE.
ACKNOWLEDGEMENT AND EXCLUSION BY STATUTE IN CERTAIN JURISDICTIONS. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF A GIFT CARD CODE IS NON-FUNCTIONAL, YOUR SOLE REMEDY (AND THE MERCHANT’S AND GIVEX’S SOLE LIABILITY) SHALL BE THE REPLACEMENT OF SUCH GIFT CARD TO THE VERIFIED REMAINING BALANCE OF SUCH GIFT CARD. GIVEX SHALL BEAR NO LIABILITY FOR THE REPLACEMENT OF ANY GIFT CARD FOR ANY REASON WHATSOEVER.
IF THE MERCHANT BECOMES INSOLVENT, MAKES A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS, FILES A VOLUNTARY PETITION OF BANKRUPTCY, SUFFERS OR PERMITS THE APPOINTMENT OF A RECEIVER FOR ITS BUSINESS OR ASSETS, BECOMES SUBJECT TO ANY PROCEEDINGS UNDER ANY BANKRUPTCY OR INSOLVENCY LAW, WHETHER DOMESTIC OR FOREIGN, OR HAS WOUND UP OR LIQUIDATED, VOLUNTARILY OR OTHERWISE, ANY OUTSTANDING GIFT CARD BALANCES WILL BE REDEEMABLE ONLY AT THE DISCRETION OF AND TO THE EXTENT DEEMED APPROPRIATE BY THE MERCHANT’S TRUSTEES OR APPOINTED LIQUIDATORS. IRRESPECTIVE OF THE MERCHANT’S CIRCUMSTANCES OR THE CIRCUMSTANCES OF THE MERCHANT’S TRUSTEES OR OTHER APPOINTED REPRESENTATIVES, UNDER NO EVENT SHALL GIVEX BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR THE VALUE OR OUTSTANDING OR REMAINING BALANCE OF ANY GIFT CARDS.
Indemnification. You agree to defend, indemnify, and hold harmless Givex, the Merchant, and their respective affiliates, subsidiaries, directors, officers, employees, representatives and agents from and against all claims and expenses, including attorneys' fees, arising out of your use of the Site.
INTELLECTUAL PROPERTY. All content on the Site, including in the checkout process, such as software, object code, source code, text, graphics, logos, button icons, images, audio clips, and digital downloads, is the property of Givex, the Merchant, or their respective licensors, as may be applicable, and is protected by Canadian and international intellectual property laws. All designs, graphics, logos, page headers, button icons, scripts, and service names are trademarks or registered trademarks of the Givex or the Merchant, as may be applicable, in Canada and/or other countries. Such trademarks may not be used without the prior written authorization of Givex or the Merchant, as may be applicable.
Personalized Messages or Images. If Givex or the Merchant deems any personalized messages or images provided by you are inappropriate, offensive, or otherwise objectionable, your order may be delayed or cancelled at the sole discretion of Givex or the Merchant.
Compliance with Applicable Laws. You certify that any products purchased through the Site will not be exported, sold, or transferred in violation of any applicable laws.
Electronic Communications. When you place an order through the Site, you are communicating with Givex electronically, and you consent to entering into the Terms by electronic means, and to receive communications from Givex electronically, including by email.
Severability. If any term or portion of the Terms is found to be invalid, void, or for any reason unenforceable, that term or portion will be severed, and will not affect the validity and enforceability of the remaining terms.
Governing Law and Venue. The Terms are governed and will be interpreted pursuant to the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Terms will be subject to the exclusive jurisdiction of the courts in the Province of Ontario.
Questions. Should have any questions about the Terms you may contact Givex at:
Givex Canada Corp.
134 Peter Street
Canada M5V 2H2