GIFT CARD Terms & Conditions
Effective November 1, 2019
This Aqua S Card Agreement (“Agreement”) is between you and Aqua S US (“we” or “us”) and describes the terms and conditions that apply to your Aqua S Card. By buying, loading, or using your Aqua S Card, you agree to these terms.
This Agreement includes an Arbitration provision that governs any disputes between you and us. Unless you opt out, as described below, this provision will:
- Eliminate your right to a trial by jury; and
- Substantially affect your rights, including preventing you from bringing, joining or participating in class or consolidated proceedings.
You agree that we may provide notices, disclosures and amendments to this Agreement, and other information relating to your Aqua S Card by electronic means.
About Your Account
We issue the Aqua S Card to you. It allows you to load a dollar value onto your Aqua S Card for use at participating Aqua S stores. The dollar value that you load onto your Aqua S Card is a prepayment for the goods and services of participating stores. We offer the Aqua S Card to make it easier for you to shop with us and to make your relationship with us more rewarding. Unless otherwise required by law or permitted by this Agreement, the dollar value on your Aqua S Card is nonrefundable and may not be redeemed for cash. The value on your Aqua S Card is not insured by the Federal Deposit Insurance Corporation (FDIC), nor does it earn interest.
Participating stores in the United States will accept your Aqua S Card. Certain Aqua S-branded locations may not permit you to use the Aqua S Card for payment.
Aqua S Cards are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use Aqua S Cards under the supervision of a parent or legal guardian who agrees to be bound by this Agreement.
Loading Value on Your Card
In the United States, you can load value on your Aqua S Card by visiting any participating store. There may be a delay from the time you pay the amount to be loaded onto your Aqua S Card and those funds being available for use.
If you use a credit or debit card to purchase or reload your Aqua S Card, prior to charging your credit or debit card, an authorization process will occur for the amount of your purchase or reload transaction (“Transaction”). The authorization process will validate the credit or debit card number, status, available credit or funds and billing information to ensure that it matches what the bank or card company has on file. Your bank or Aqua S may attempt to contact you for additional information prior to authorizing the Transaction amount.
For credit cards, once an authorization is received, you may notice a decrease in your available credit line. Your bank may hold this dollar amount from your credit line or available balance for a short period of time determined by the policy of your bank before your Transaction is fulfilled. For debit cards, your bank may pre-authorize a charge to your deposit or checking account and place a temporary hold on the funds before your Transaction is fulfilled. Regardless of whether you use a credit or debit card, your card will be charged only upon fulfillment of your Transaction. If your Transaction is cancelled, Aqua S will request an authorization reversal on your behalf. Reversal times may vary. We recommend contacting your bank or credit card company to learn about their authorization and authorization reversal policies.
From time to time, we may in our sole discretion, run promotional programs associated with the Aqua S Card program (“Promotions”). Such Promotions are subject to these terms, as well as additional terms as indicated in connection with the Promotions. We reserve the right to modify the terms and conditions of any Promotion at any time, including and up to terminating the Promotion.
Fees and Expiration of Card Balances
We do not charge any activation, service, dormancy or inactivity fees in connection with your Aqua S Card. Your Aqua S Card has no expiration date nor does the value on your Aqua S Card ever expire.
Receipts and Transaction History
When you use your Aqua S Card, we will provide a receipt if you request one. The receipt will indicate that the purchase was made using an Aqua S Card and will provide the remaining balance of your Aqua S Card. We will not send you statements of activity on your Aqua S Card.
Billing Errors, Corrections
We will correct the balance of your Aqua S Card if we believe that a clerical, billing, or accounting error occurred. If you have questions regarding your Transaction history or any correction, or if you wish to dispute any Transaction or correction that has been applied to your Aqua S Card, please contact your nearest store. Assuming you provide sufficient details, we will review your claim and tell you what we find. We will correct any error promptly after we finish our review. If we do not find any error, we will explain what we found. We have no obligation to review or correct any billing error unless you provide us with sufficient notice for us to review your claim within sixty (60) days of the date of the Transaction in question.
Fraud Associated with Your Aqua S Card or Card Balance
We will not accept any Aqua S Card, or will limit use of any Aqua S Card or Aqua S Card balance, if we reasonably believe that the use is unauthorized, fraudulent or otherwise unlawful, and we consider such action appropriate to limit our risk. Aqua S does not control who may sell preloaded Aqua S Cards, nor can we control the price or preloaded denominations offered by independent sellers. Consequently, Aqua S has no liability to you for any third-party fraud or unlawful activity associated with anyAqua S Card balance. If Aqua S discovers any Aqua S Card or Aqua S balance was sourced or derived from fraud or other unlawful means, we may in our sole discretion, cancel all impacted Aqua S Cards and retain all related Aqua S Card balances without notice to you. We may use retained Aqua S Card balances to help offset our liability to card companies, networks and issuers of lost or stolen credit and debit cards used to purchase or load Aqua S Cards.
Liability for Unauthorized Transactions
You should treat your Aqua S Card like cash. If your Aqua S Card is lost or stolen, anyone who obtains possession of either may use your Card. You are responsible for all transactions on your Aqua S Card, including unauthorized transactions
Changes to This Agreement
We may amend this Agreement at any time. We will post the amended Agreement to our website at https://aquas.us.com/gift-card/, and for a period of thirty (30) days after we post the amended Agreement, we will also post a notice on our website stating that the terms of this Agreement have changed. As permitted by applicable law, any change, addition or deletion will become effective at the time we post the revised Agreement to our website. Unless we state otherwise, the change, addition, or deletion will apply to your future and existing Aqua S Cards. You are deemed to accept the changes, additions or deletions if: (1) you do not notify us to the contrary in writing within 20 days of the date of our notice or such other time specified in the notice; or (2) you use any of your Aqua S Cards after such notice period. If you notify us that you do not accept the changes, additions or deletions, we will cancel your Aqua S Cards and refund any remaining balance to you.
Cancellation of This Agreement
We may suspend or terminate this Agreement and revoke or limit any or all of the rights and privileges granted to you at any time without notice or liability. Termination may result from your fraudulent or unauthorized use of the Aqua S Card including your failure to provide valid information. For example, transferring balances between different Aqua S Cards solely for the purpose of obtaining cash back is an unauthorized use of the Aqua S Card and if we deem it appropriate to limit our losses we will cancel any such Aqua S Card and retain any balances associated with those Aqua S Cards. If we terminate this Agreement without cause, we will refund or issue store credits equal to the balance on your cancelled Aqua S Card(s), less any amounts that you may owe us.
Please read this section carefully. It affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of this Agreement.
Binding Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to this Aqua S Card Agreement, your Aqua S Card and your relationship with us. Any dispute or claim arising out of or relating to this Agreement or use of the Aqua S Card and your relationship with Aqua S or any subsidiary, parent or affiliate company or companies (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that either of us may take claims to small claims court if they qualify for hearing by such a court.
Opt-Out. Notwithstanding the above, you may choose to pursue your claim in court and not by arbitration if you opt out of this arbitration provision within 30 days from the earliest of the date you purchased, loaded, reloaded or used any of your Aqua S Cards (the “Opt Out Deadline”) after this Agreement has gone into effect. You may opt out of these arbitration procedures by sending us a written notice that you opt out to the following address: Aqua S 9889 Bellaire Blvd D232, Houston, TX 77036. Any opt-out received after the Opt Out Deadline (allowing three (3) additional days for mailing) will not be valid and you must pursue your claim in arbitration or small claims court.
The arbitration of any dispute or claim shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement. The AAA Rules and information about arbitration and fees are available online at www.adr.org. You and we agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration will be held in a reasonably convenient location in the state in which you reside or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce this Agreement as a court would. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
Costs of Arbitration. Upon filing of the arbitration demand, you will pay all filing, administration and arbitrator fees, regardless of claim size. Each party will bear the fees and expenses of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
Class Action Waiver and Jury Waiver. You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this class action waiver is unenforceable, the arbitration agreement will be void as to you. If you opt out of the arbitration provision as specified above, this class action waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt out procedure set forth above. If for any reason a claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial.
Governing Law – Texas
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas notwithstanding any conflict of law rules.
Disclaimers and Limits of Liability
Aqua S and its affiliates make no representations, warranties or conditions of any kind, express or implied, with respect to the Aqua S Card, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement, or any warranty arising by usage of trade, course of dealing or course of performance. Aqua S does not represent or warrant that your Aqua S Cards will always be accessible or accepted.
In the event that Aqua S or its affiliates are found liable to you, you shall only be entitled to recover actual and direct damages and such damages shall not exceed the last balance held on your Aqua S Card. Aqua S and its affiliates shall have no liability for any incidental, indirect or consequential damages (including without limitation loss of profit, revenue or use), or any punitive or exemplary damages arising out of or in any way connected with this Agreement, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, even if we or our authorized representatives have been advised of the possibility of such damages. In no event shall Aqua S or its affiliates have any liability for unauthorized access to, or alteration, theft or destruction of an Aqua S Card through accident, misuse or fraudulent means or devices by you or any third party, or as a result of any delay or mistake resulting from any circumstances beyond our control.
The laws of certain states or other jurisdictions do not allow limitations on implied warranties, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have rights in addition to those contained in this Agreement. In such jurisdictions, our liability is limited to the greatest extent permitted by law.
We may assign all or part of this Agreement without notice to you. We are then released from all liability. You may not assign this Agreement without our prior written consent and any attempted assignment will be void.
Entire Agreement, Construction
This Agreement is the complete and exclusive statement of agreement between you and Aqua S US, and supersedes and merges all prior proposals and all other agreements governing your Aqua S Card.
If any provision of this Agreement, other than the Class Action Waiver in the Arbitration provision above, is determined to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Inquiries or Questions
If you have any questions regarding this Agreement or your Aqua S Card, please visit our website at https://aquas.us.com/