Posted: October 6, 2015; Effective: October 6, 2015
You accept these Terms when you enroll in the Program. We may add to, change, or remove any part of these Terms from time to time. If we change any material terms that would adversely affect your rights as they are presented to you in these Terms, we will notify you, either through your Microsoft account, in an email or text message notification, or through other reasonable electronic means. Your continued participation in the Program, including receiving Earn Credits when you make a Qualified Merchant Purchase at participating Earn Merchants and redeeming these Earn Credits when you make a Qualified Microsoft Purchase, constitutes your acceptance of any changes to these Terms. Please note that we do not provide warranties for the Program. These Terms also limit our liability, in Sections 10 and 11, and we ask that you read them carefully.
SECTION 12 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH MICROSOFT. PLEASE READ IT.
1. Overview of Program
The Program allows you to receive promotional credits from Microsoft (“Earn Credits”) when you make a Qualified Merchant Purchase at participating merchants in the Microsoft Earn Program as listed on the Program Site (each, an “Earn Merchant”). A Qualified Merchant Purchase is a purchase from an Earn Merchant that you make with your Enrolled Card in accordance with these Terms, including but not limited to the exclusion of certain purchases listed in Section 5. Earn Credits do not automatically appear as credits on your payment card statement; instead, you must subsequently make a Qualified Microsoft Purchase using your Enrolled Card. A Qualified Microsoft Purchase is a purchase that you make using your Enrolled Card at Microsoft locations identified at the Program Site, in accordance with these Terms. The Program Site is located at www.microsoft.com/earn . After you make your Qualified Microsoft Purchase, the Earn Credits will then be applied as a payment card statement credit as described in this Terms, up to the amount of Earn Credit balance, but not greater than the Qualified Microsoft Purchase.
To participate in the Program, enroll your eligible credit or debit card with the Program, and then use your enrolled credit or debit card to make a Qualified Purchase at the participating Earn Merchants.
2. Enrollment Requirements
You can only participate in the Program if you are at least 18 years old and reside in one of the 50 U.S. states or the District of Columbia. You must have a Microsoft account to enroll in the Program. Microsoft accounts are subject to separate terms and conditions that you accepted when you created your Microsoft account. To enroll in the Program, visit the Program Site), and follow the instructions for enrolling your credit or debit card. You will also be enrolled to receive a recurring Earn Statement and Earn Transaction Confirmation communications. You can choose to stop participating in the Program at any time by deleting your Enrolled Cards from the Program Site.
3. Changes to Offers and Program
We may suspend, terminate or change any aspect of the Program at any time. We or any participating Earn Merchants may suspend, terminate or change the terms, conditions and availability to receive and to redeem Earn Credits at any time and without liability. If we terminate the Program or your access to your Microsoft account, you will not be able to receive or redeem Earn Credits. In the event that Microsoft deems that you have violated the Terms, or that your account has engaged in fraud or misuse of the Program, then without limiting the foregoing, Microsoft may suspend or terminate your participation in the Program without notice and without the opportunity to redeem Earn Credits.
4. Enrolled Card Information
To receive and redeem your Earn Credits, you must enroll a valid, eligible credit or debit* card at the Program Site by submitting information about your card that Microsoft requests (each enrolled and accepted Card, a "Enrolled Card"). By submitting Enrolled Card information to us, you (a) represent and warrant that you are authorized to use the Enrolled Card that you provided, and that any payment information you provide is true and accurate; (b) agree to update any Enrolled Card information so that it is always true and accurate during the time you participate in the Program; (c) agree that Microsoft may share Enrolled Card information with third party payment processors including but not limited to First Data, Visa, MasterCard, American Express, and Rewards Network (each, a "Payment Processor") in accordance with these Terms; (d) agree that the Payment Processors may monitor the transactions that occur on your Enrolled Card at participating Merchants; (e) agree that Microsoft, participating Merchants and Payment Processors may share with each other details about your transactions that are related to an Offer (including date, time, Merchant name and ID, last four digits of the credit or debit card, and the amount of the transaction) ("Transaction Information"), and (f) agree to comply with all laws that apply to your participation in the Program. In connection with the Program, we have engaged Rewards Network, Inc. (" Rewards Network ") to source restaurants, bars and other dining establishments, (“Rewards Network Merchants”), as indicated on the Program Site. We will provide your Transaction Information to Rewards Network solely to facilitate and administer the RN Merchants.
Microsoft will not charge your Enrolled Card for purchases at participating Merchants or for any fees for participating in the Program. Microsoft will only retain and use Enrolled Card information and Transaction Information as described in these Terms and in our privacy policies. You may delete, add or change Enrolled Cards at any time through the Program Sites. If Microsoft or a Payment Processor has reasonable grounds to suspect that the Enrolled Card information you provided is untrue, inaccurate or incomplete, we may suspend or terminate your participation in the Program.
* Please note that, with some exceptions, debit cards with the VISA or MasterCard logos can be used as long as you sign (and do not enter a PIN) at checkout.
SPECIAL NOTE ABOUT VISA CARDS: Only credit, debit and reloadable prepaid Visa cards that are in good standing issued by an issuing bank in the United States are eligible and not all transactions with your enrolled Visa card are tracked. Certain Visa cards, including Visa Corporate cards, Visa Purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT Visa cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) Visa cards) or insurance prepaid cards, Visa Buxx, and Visa cards whose transactions are not processed through the Visa U.S.A. payment system are not eligible.
5. Receiving Earn Credits; Maximum Earn Credits
To receive Earn Credits, you must use your Enrolled Card to make a Qualified Merchant Purchase at the participating Earn Merchant, in accordance with these Terms. You will not receive Earn Credits on any portion paid with gift certificates, gift cards, cash, or a payment type other than your Enrolled Card. You will receive Earn Credits, up to the annual maximum amount stated below, as a percentage of your qualified purchase at Earn Merchants. The percentage amount of Earn Credits you receive for each Qualified Merchant Purchase, and any restrictions or limitations associated with any Earn Merchant, will be published on the Program Site or stated in these Terms of Service. Microsoft reserves the right not to provide or to reverse Earn Credits for purchases of prepaid debit cards, money orders, gift cards, cash equivalents, and for items that are returned. To prevent duplication of promotional rewards, Microsoft also reserves the right not to provide Earn Credits for Rewards Network Merchants if your Enrolled Card is registered with another program operated by Rewards Network, a list of which is located at www.rewardsnetwork.com/business-solutions/rewards/.
You can check your Microsoft Earn account on the Program Site for your Earn Credit balance and expiration date; your Earn Credit account is not the same as your Microsoft account where other promotional credits may be reflected. Earn Credits are not transferable, have no cash value, are void where prohibited by law, and may not be used in combination with any other program offered by Microsoft or third parties. You agree to timely and accurately provide us, within 10 business days of our request, with any information (including all receipts provided by participating Earn Merchants for qualifying purchases) that we may need to verify your eligibility to receive Earn Credits. If you fail to comply with all of the Earn Program requirements, you will not receive the Earn Credits associated with your purchase. You will also be liable for your purchase even if the Earn Credit is rejected due to your non-compliance with the Earn Program.
You may receive up to a maximum of $2,000 Earn Credits per calendar year, and a maximum of $42.00 Earn Credits in any single Earn Transaction at a participating restaurant.
Please note that Earn Credits, while promotional in nature, are not the same as the money in your Microsoft account, and cannot be transferred or used for other Microsoft programs or at Microsoft online stores.
6. Redeeming Earn Credits; Earn Credit Expiration
To redeem Earn Credits, you must use your Enrolled Card to make a Qualified Microsoft Purchase. Your Enrolled Card will be charged the full purchase price (plus applicable taxes and shipping) at the time of purchase. Upon verification of your Qualified Microsoft Purchase, you will receive a credit on your payment card statement for the amount of unexpired Earn Credits you have earned to date, up to the amount of the purchase amount place on your Enrolled Card. We may reverse Earn Credits or related payment card statement credits, if the Qualified Microsoft Purchase is later returned, cancelled or otherwise modified. You are responsible for any taxes and charges you may incur as a result of the Earn Credits provided to you. If you receive Earn Credits in error, we may reverse the issuance or redemption of the Earn Credits. You agree to cooperate with us in our efforts to do this. We may also reduce the Earn Credits provided to you without notice to adjust for any previous overpayment.
Earn Credits will expire one year following the day on which they are received as noted in your Microsoft Earn account. Earn Credits cannot be redeemed following expiration.
7. Microsoft's Use of Enrolled Card and Transaction Information
By agreeing to participate in the Program, you authorize Microsoft to use your Enrolled Card information, and your other Program-related information (including information about your interactions with the Program Site and Qualified Microsoft Purchases, and the receipt and redemption of Earn Credits) (collectively, "Program Information") and Transaction Information as follows:
a) Microsoft may share your Enrolled Card information and other Program Information with Payment Processors in order for Payment Processors to track your redemption activity, which Microsoft and Payment Processors will also use to verify your eligibility to redeem an Offer.
b) Microsoft may use Program Information (including information about your Qualified Microsoft Purchases) to enhance the Program, content and advertising on the Program Site and on other sites and services, and to improve Microsoft's products and services.
c) Microsoft may use your Program Information for other Microsoft marketing purposes, and to administer the Program, including but not limited to identifying fraud or other potential misuse of the Program .
d) Microsoft may provide to Earn Merchants, and to their representatives, Program Information and Transaction Information relating specifically to that Earn Merchant activity so that the Merchant can assess the results of its Offer campaign.
e) Microsoft may provide your Program Information to other companies or individuals to perform functions on our behalf. These functions may include, among other things, analyzing data; providing marketing assistance; or other business functions.
f) Microsoft may use Program Information as set forth in our privacy policies located here , such as, in order to respond to a request from a government authority or to assist with customer support requests.
g) Microsoft may use Transaction Information solely for the purposes of this Program, providing reporting to Merchants and their representatives, to notify you about the status of any Offer, and to respond to customer support requests.
9. Payment Processor's Use of Enrolled Card Information
Microsoft will notify the applicable Payment Processor when you have enrolled an Enrolled Card with us and when you have an Offer or Earn Credits available for use. The Payment Processor will then notify Microsoft when its systems have identified an Enrolled Card transaction at an Earn Merchant that appears to be eligible for redemption of an Offer or Earn Credits, and Microsoft will confirm whether the transaction is eligible for the redemption.
10. NO WARRANTIES; DISCLAIMERS
MICROSOFT, OUR AFFILIATES, RESELLERS, DISTRIBUTORS, VENDORS, AND PAYMENT PROCESSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE PROGRAM. YOU UNDERSTAND THAT PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK AND THAT WE PROVIDE THE PROGRAM ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." MICROSOFT DOESN'T GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE PROGRAM. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE.
YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DON'T GUARANTEE THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR.
11. Limitation of Liability
If Microsoft breaches these Terms, you agree that your exclusive remedy is to recover, from Microsoft or its affiliates, resellers, distributors, and vendors, direct damages up to an amount equal to the discounts in Offers that you have redeemed in compliance with these Terms. Your exclusive remedy for Microsoft’s breach of these Terms is against Microsoft, not against any Payment Processor or Merchant. YOU CAN'T RECOVER ANY OTHER DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE. These limitations and exclusions apply if this remedy doesn't fully compensate you for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to anything related to these Terms such as loss of content; any virus affecting your participation in the Program; delays or failures in starting or completing transmissions or transactions; claims for breach of contract, warranty, guarantee, or condition; strict liability; negligence; misrepresentation or omission; trespass; violation of statute or regulation; or unjust enrichment. Some or all of these limitations or exclusions may not apply to you if your state, province, or country doesn't allow the exclusion or limitation of incidental, consequential, or other damages.
12. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN THE UNITED STATES
This section applies to any dispute EXCEPT IT DOES NOT INCLUDE A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, MICROSOFT'S, OR EITHER OF OUR LICENSORS' INTELLECTUAL PROPERTY RIGHTS. The term "dispute" means any dispute, action, or other controversy between you and Microsoft concerning the Program or these Terms, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law.
12.1 Notice of Dispute. In the event of a dispute, you or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399, US. A form is available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245499). Microsoft will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Microsoft will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Microsoft may commence arbitration.
12.2 Small claims court. You may also litigate any dispute in small claims court in your county of residence or King County, Washington, if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
12.3 Binding arbitration. If you and Microsoft don't resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator's award.
12.4 Class action waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Microsoft will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
12.5 Arbitration procedure. Any arbitration will be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules. If you are an individual and use the Program for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Program, its Supplementary Procedures for Consumer-Related Disputes will also apply. For more information, see the American Arbitration Association website (http://go.microsoft.com/fwlink/?LinkId=248505) or call 1-800-778-7879. To commence arbitration, submit the form available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245497) to the AAA. You agree to commence arbitration only in your county of residence or in King County, Washington, US. Microsoft agrees to commence arbitration only in your county of residence. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.
12.6 Arbitration fees and incentives.
12.6.1 Disputes involving $75,000 or less. Microsoft will promptly reimburse your filing fees and pay the AAA's and arbitrator's fees and expenses. If you reject Microsoft's last written settlement offer made before the arbitrator was appointed ("Microsoft's last written offer"), your dispute goes all the way to an arbitrator's decision (called an "award"), and the arbitrator awards you more than Microsoft's last written offer, Microsoft will give you three incentives: (i) pay the greater of the award or $1,000; (ii) pay twice your reasonable attorney's fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Microsoft agree on them.
12.6.2 Disputes involving more than $75,000. The AAA rules will govern payment of filing fees and the AAA's and arbitrator's fees and expenses.
12.6.3 Disputes involving any amount. In any arbitration you commence, Microsoft will seek its AAA or arbitrator's fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Microsoft commences, Microsoft will pay all filing, AAA, and arbitrator's fees and expenses. Microsoft won't seek its attorney's fees or expenses from you in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
12.7 Conflict with AAA rules. These Terms governs to the extent it conflicts with the AAA's Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
12.8 Claims or disputes must be filed within one year. To the extent permitted by law, any claim or dispute under these Terms must be filed within one year in small claims court (section 12.2), an arbitration proceeding (section 12.3), or in court, if section 12.9 permits the dispute to be filed in court instead of arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If a claim or dispute isn't filed within one year, it's permanently barred.
12.9 Severability. If the class action waiver in section 12.4 is found to be illegal or unenforceable as to all or some parts of a dispute, then section 12 won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this section 14 is found to be illegal or unenforceable, that provision will be severed with the remainder of section 14 remaining in full force and effect.
13. Laws and Jurisdiction
The laws of the state where you live govern the interpretation of these Terms, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, for all disputes arising out of or relating to these Terms or the Program that are heard in court (not arbitration and not small claims court).
14. Third-Party Websites
You may be able to access third-party websites or services while participating in the Program. Microsoft isn't responsible for third-party websites, services, or content available through those third-party websites or services. We are not responsible if a Payment Processor fails to make such an authorization or for any other delay in recording credits or adjustments to your statement account . You are solely responsible for your dealings with third-parties (including Merchants). Your use of third-party websites or services may be subject to that third-party's terms and conditions.
Sections that by their terms apply after it ends will survive any termination or cancellation of these Terms.
16. Assignment and Transfer
We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign these Terms or transfer any rights to participate in the Program.
These Terms is provided in electronic form. We may provide you information in electronic form about these Terms, the Program (including when an Offer has been redeemed), and any information the law requires us to provide. We may provide required information to you: (i) by e-mail at the address you specified in your Microsoft account; (ii) by text message if you added a mobile telephone number to your Microsoft account and agreed to receive text messages from us; and/or (iii) on certain Microsoft sites. Notices sent to you via e-mail or text message will be deemed given and received when the e-mail or text message is sent. Text messaging charges from your mobile carrier may apply. If you do not consent to receive information electronically, you must cease participating in the Program.
18. Contract Interpretation
These are the entire Terms between you and Microsoft for your participation in the Program. These Terms supersedes any prior Terms between you and Microsoft regarding the Program. All parts of these Terms apply to the maximum extent permitted by relevant law. If a court holds that we can't enforce a part of these Terms as written, we may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms won't change. The Terms’ section titles are for reference only and have no legal effect.
19. Third-Party Beneficiaries
These Terms is solely for your and our benefit. It isn't for the benefit of any other person, except for Microsoft's successors and assigns and any participating Payment Processor who shall be deemed third party beneficiaries of the Disclaimers, Limitation of Liability, and Arbitration provisions of these Terms.
20. Customer Support
For questions or disputes regarding the Program or Offers, please contact our customer support at email@example.com. Questions or disputes about any unauthorized use of your Enrolled Card should be directed to your card issuing bank. Questions or disputes regarding any goods or services purchased from participating Merchants should be directed to the Merchant that sold you the good or performed the service for you.