Terms of Use

Eligibility

If you are using our Services on behalf of a legal entity, you represent and warrant that:

(1) the legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization; and

(2) you are duly authorized by such legal entity to act on its behalf. If you do not have such authority, then you may not use the Services on behalf of such legal entity and you must discontinue use of the Services immediately.

Twism reserves the right to deny, restrict, or suspend access to the Services or certain types of Coins or Payment Codes to Merchants engaged in conduct or business practices prohibited by Twism’s Third Party Partners, such as marijuana or cannabis related businesses, casinos, internet/online gambling or other gaming establishments, pawnbrokers, dealers in precious metals, stones or jewels, private ATM owners, sales of alcohol, tobacco, other controlled substances, political products or services, religious products or services, firearms, multi-level marketing, financial services, or other practices prohibited now or in the future by Twism’s Third Party Partners. For more information, see our FAQ article: “What kind of businesses will I find on Twism?”

Coin And Payment Code Terms

(a) Coin Issuance and Use

Twism offers Merchants the ability to offer, sell, and issue Coins and Payment Codes which are used by customers of Merchants for discounts or stored-value purchases at the issuing Merchant’s online or physical location. The Merchant’s Coins and Payment Codes are integrated with and administered by Twism’s Services.

All Coins, Payment Codes, and associated Credits are issued by the Merchant identified on the Coin or Payment Code and are financial obligations of that Merchant. Twism has no financial obligations for the Merchant’s Coins or Payment Codes. Each Merchant’s Coins or Payment Codes may only be used as prepayment, coupon, or discount for the purchase of goods or services by End Users at that Merchant’s participating locations, either physical stores or online or affiliated locations, such as a specific retailer or retail chain, a college campus, or a subway system (collectively, “Closed-Loop Locations”). Unless otherwise prohibited by these Merchant Terms or the Terms of Use, an End User may also send Coins and Payment Codes to other End Users, for use at the Closed-Loop Locations associated with those Coins and Payment Codes.

The following chart summarizes some notable Coin and Payment Code features, subject to these Merchant Terms:

TWISM RESERVES THE RIGHT TO AMEND, CORRECT, RECLASSIFY, OR SUBDIVIDE THE CLASSIFICATION OF ANY COIN OR PAYMENT CODE AT ANY TIME

each Merchant, and not Twism, determines the economics of their Coins or Payment Codes

Merchants are responsible for conspicuously posting terms and conditions in their stores and on their own websites to the extent required by applicable law in their jurisdiction.

If Twism has the ability to determine the tips, taxes, or delivery charges associated with a transaction, the tips, taxes, or delivery charges may not count towards or may be excluded from Credits for Coins. The portion of a purchase made with Coins or Payment Codes may also be excluded from earning further Coins or Payment Codes. Twism may make these exclusions at the time of purchase or shortly thereafter.

Although Twism offers online tools and resources through the Services to help you create and manage your Coins, Payment Codes, and general Coin Economics as part of the Merchant’s loyalty rewards programs, you understand that your issuance of Coins and Payment Codes to End Users imposes legal obligations on you, which you must strive to honor. Twism’s online tools, resources, and any other information provided serve only informational purposes and are not guaranteed to be accurate, complete, or current. They are not intended to provide legal, accounting, tax, or other professional advice. You should also keep in mind that Twism is not responsible or liable in any way for your issuance of Coins or Payment Codes or for any aspects of the Coin Economics, and disclaims such in this Agreement. You are responsible for understanding and complying with any applicable laws and regulations in your jurisdiction, including but not limited to laws and regulations relating to financial incentives, endorsements and testimonials, loyalty programs, coupons, gift cards, prepaid cards, taxes, privacy, security, and data protection. Note that these laws may require providing certain notices or disclosures to your customers.

You warrant that you will give End Users as much advance notice as possible (Twism suggests 60 days) for any significant change regarding Coin Economics that impacts the value of an End User’s Coins or Payment Codes, impacts the ability of End User to collect or use Coins or Payment Codes, discontinues your Coin or Payment Codes, or converts Coins or Payment Codes to a different loyalty, reward or other promotional program not related to Twism.

In the U.S., consistent with applicable law, you must allow End Users to redeem any Credit for Purchased Coins and Reserve Coins with a cash value of less than $10 U.S. to be redeemed in cash (e.g. currency or check) for its cash value. If Purchased Coins or Reserve Coins have a cash value of $10 U.S. or above, you can choose whether to allow redemption in cash or whether the user can keep the amount only in the form of Purchased Coins or Reserve Coins.

Twism keeps track of Coins and Payment Codes digitally, through a “wallet.” However, Coins are not money, cryptocurrency, or any other form of currency.

Reward Coins, Offer Coins, and Payment Codes have no cash value prior to redemption, are not money, and are non-transferrable (except Reward Coins), not for resale, not refundable, and not redeemable for cash.

For security or compliance purposes, Twism may place daily caps or limits on the amount of Coins or Payment Codes each user may hold or transact.

Merchants are responsible for determining which jurisdiction’s laws and regulations apply to their transactions, and for complying with such laws and regulations. Twism may permit merchants to set expiration dates on certain Coins and Payment Codes, subject to applicable law. Merchants are responsible for ensuring that such expiration dates and state of issuance are clearly disclosed on the Coins and Payment Codes. Merchants may set expiration dates on certain types of Purchased Coins, provided those dates are no less than five years from the later of the issuance or last reloading of the Purchased Coin (or such longer period required by applicable law), and such expiration dates are clearly disclosed on the Purchased Coin.

If Purchased Coins are purchased as a gift for another person (a “Gift Coin”, Merchants may set expiration dates for the gift recipient’s use of such Purchased Coins, so long as the expiration date is clearly disclosed to both the purchaser and the gift recipient, and the purchaser is given a full refund upon the expiration date. Merchants are responsible for complying with any applicable escheat laws.

Most Coins do not have dormancy fees. However, certain reloadable Purchased Coins may carry fees of less than $1 U.S. per month if the value remaining on the Purchased Coin is $5 U.S. or less each time the fee is assessed, and the Purchased Coin has been inactive for 24 consecutive months (for example, no purchases, “reloading,“; or balance inquiries during that period). Merchants are responsible for ensuring that dormancy fees are disclosed on Purchased Coins prior to purchase.

Twism reserves the right to take appropriate technical measures to prohibit circulation or use of any type of Coin or Payment Code, in its sole discretion for purposes of compliance with this Agreement, taking into account operational and technical requirements required to do so.

(b) Merchant Obligation to Honor Coins

As a condition of using the Services, you are obligated to honor and redeem all Coins and Payment Codes rightfully earned and/or distributed to End Users.

(c) Fees

Twism offers certain aspects of the Services on a subscription basis (a “Subscription”). Twism has the right to charge Merchants a weekly or monthly fee for defined Service levels (the “Fees”) beginning on the eighth day after a Merchant initiates a Subscription and accepts these Merchant Terms (the “Trial Period”). If a Merchant terminates the Services within the Trial Period, Twism shall not charge any Fees. If a Merchant both terminates and reactivates a Subscription before a Trial Period ends, Twism shall charge the Merchant as if no termination had occurred. If a Merchant who has terminated a Subscription reactivates that Subscription after the end of a Trial Period, Twism shall charge Fees immediately without providing an additional Trial Period.

You hereby authorize Twism to collect and receive Fees in any manner it deems appropriate, in its sole discretion, including by charging a credit card on file or through Twism’s acceptance of Coins redeemable only by you and that are minted by you and delivered to Twism (“Reserve Coins”) totaling 25 Reserve Coins per week, or such other amount as Twism may specify in advance in writing. You acknowledge that Reserve Coin payment functionality may be implemented either automatically (“auto-mint”) or manually directed by you, and that regardless of the method of creating Reserve Coins, you are and at all times shall remain the legal “issuer” of such Reserve Coins for all intents and purposes and shall act as the only business where such Reserve Coins may be redeemed. You acknowledge that Twism has the right to sell or otherwise transfer the Reserve Coins, and the right to set the price of such Reserve Coins, including the right to sell Reserve Coins at a discount determined by Twism in its sole discretion. For the avoidance of doubt, you hereby grant Twism the right to distribute these Coins at its sole discretion, whether as giveaways, promotional items, or for sale at either full value or at a discount, and you acknowledge that Reserve Coins, in Twism’s sole discretion, may be distributed in the same way as other Coins available through the Services or distributed in a different manner by Twism, whether for a price, another form of value, or for free, at its sole discretion. You also acknowledge that Reserve Coins do not expire. You shall honor Reserve Coins that have been distributed or otherwise transferred by Twism, and provide refunds subject to applicable law and these Merchant Terms. If you do not honor Reserve Coins for their full value, Twism reserves the right to seek appropriate recourse on behalf of itself and/or End Users, including but not limited to by charging you through other billing methods or taking legal action. Twism may also suspend your account in its sole discretion.

Fees are charged until the Subscription and/or your account is terminated by you or Twism pursuant to these Merchant Terms.

For previous Axxess Merchants, the amount of the Fees will be equal to or less than the fee charged by Axxess for the specified length of service. Continued use of the Services will be subject to timely paying Twism’s Fees as described above. If your payment card is declined or Twism otherwise does not receive payment of your Fees, Twism may suspend your account in its sole discretion.

(d) Axxess Migration

If you previously used Axxess Card, Twism will continue to invoice you for fees in the amount set forth in your contract with Axxess Card until the earlier of (i) the termination of your contract with Axxess Card or (ii) through March 2024, rather than the Fees. After that, you will be given the option to continue with Twism at Twism’s applicable Fees. Your continued use of the Services will be subject to timely payments. If your payment card is declined or Twism otherwise does not receive payment of your Fee, Twism may suspend your account in its sole and absolute discretion.

(e) Settlement and Withdrawal Process and Fees

Upon receipt of payment from the End User for a Coin or Payment Code, the settlement process commences and the funds will be transferred to your account after financial clearance. Settlement is a necessary step to ensure the validity of payment and the availability of funds for transfer. You acknowledge that the settlement process may take a minimum of 48 hours as a result of policies and procedures of Third Party Partners and Payment Card Networks.

To access your funds and start receiving withdrawals, you need to link a valid bank account or debit card to your Twism account. All transfers will be facilitated through Twism’s Third Party Partners. If you do not have an account with appropriate Third Party Partners, you will be prompted to create one. For lower fees, Twism suggests accumulating at least $50 before initiating a withdrawal.

When an End User purchases Purchased Coins or purchases or receives Reserve Coins, Twism will deposit the respective Purchased Coin or Reserve Coin amount into the End User’s digital wallet on the Services. Purchased Coins and Reserve Coins can also be sent by End User to other End Users as a gift (a “Gift Coin”). Twism will enable you to withdraw the funds charged to the End User’s credit or debit card equal to the amount of the Purchased Coins purchased LESS a flat rate of 5% + $0.30 on every transaction or such other amount as Twism may communicate to you in writing from time to time.

The first withdrawal of each month, in case of any, incurs an additional fee of $2 or such other amount as Twism may communicate to you in writing from time to time. There are two options when performing your withdrawal. Selecting a withdrawal option will display the associated fees that are applied only once a transfer has been issued for your Purchased Coin sales:

1. ACH Transfer - funds are transferred via ACH, which incurs a fee of 0.25% + 25¢ or such other amount as Twism may communicate to you in writing from time to time deducted directly from your withdrawal. You can expect to receive the funds in 2-3 business days.

2. Instant Payment - funds are transferred immediately, which incurs a fee of 1% (minimum of 50¢) + 50¢ or such other amount as Twism may communicate to you in writing from time to time deducted directly from your withdrawal.

In some cases, delays may occur in receiving your funds due to reasons including, but not limited to, disputed purchases, bank holidays, and national holidays.

(f) Refund Requests

If an End User requests a refund for Purchased Coins, the refund will be processed through the Payment Card Network and credited back to the End User’s original form of payment. Merchants are responsible for setting the refund terms for Purchased Coins, including the timing of refunds and are responsible for conspicuously posting their refund policies in their stores and/or online, as applicable.

Refunds can be partially or fully refunded for any successful payment. Refunds use your available balance with our Third Party Partners, which does not include any pending balance. If your available balance does not cover the amount of the refund, Twism reserves the right to debit the remaining amount from the future credits you might have. You may incur fees to refund a charge.

Please contact Twism support at support@twism.com to communicate any refund request you might have.

(g) Compliance and Prohibited Uses

You represent and warrant to Twism that you comply with all applicable laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations, and that you do not use the Services for the purpose of accepting security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity.

You shall not use the Services for transactions in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity, or in violation of the terms of service of any Third Party Partners. You shall immediately notify Twism of any actual or suspected unauthorized use, fraud, violations of any state or federal laws or regulations, or other breach of this Agreement or any Twism policies, whether by you or End Users.

You shall promptly cooperate with Twism to provide information that Twism requests to verify your identity, detect money laundering, terrorist financing, fraud, or any other financial crimes, and you acknowledge that we may keep a record of such information as required or permitted by law.

Use of our Services for any dealings, engagement, or sale of goods/services linked directly or indirectly with jurisdictions that we have deemed high risk, such as Cuba, Iran, North Korea, Syria, Russia, and the Crimea, Donetsk, and Luhansk Regions, is prohibited. You are not permitted to use our Services if you are, or you are owned or controlled directly or indirectly by, any person, group, entity, or nation, named on any list issued by the Department of the Treasury’s Office of Foreign Asset Control (“OFAC”), or any similar list or by any law, order, rule, or regulation or any Executive Order of the President of the United States, including Executive Order 13224, as a "Specially Designated National and Blocked Person”, terrorist, or other banned or blocked person (collectively, a “Prohibited Person”). By using our Services you represent and warrant that (i) you are not (nor are you owned or controlled, directly or indirectly, by any person, group, entity, or nation that is) acting directly or indirectly for or on behalf of any Prohibited Person; and (ii) you have not conducted nor will you conduct business nor have engaged nor will you engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including, without limitation, the making or receiving of any contribution of funds, goods, or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation. Furthermore, it is your responsibility to ensure that: (a) your End Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to any Prohibited Persons.

(h) Transaction Limits

You shall comply with any individual transaction amount limits imposed by Twism, which will initially be set to two hundred ($200.00) dollars or such other amount as Twism may specifically in writing to you from time to time. End User will not be allowed to buy in a series of transactions more than five hundred ($500.00) dollars in Purchased Coins in any single day or hold more than two thousand ($2,000) dollars in Purchased Coins in their account at any time.

(i) Marketing

In order to facilitate Merchant marketing initiatives, you are granted, during the term of this Agreement, a limited, non-exclusive license to use Twism promotional materials and Twism trademarks and logos for marketing of your Coins and Payment Codes. You are not permitted to alter or modify any Twism trademarks or logos. All other uses of Twism’s trademarks and logos are subject to the prior written approval of Twism. You shall not use any Twism promotional materials or Twism trademarks or logos in any way that suggests or implies that Twism endorses your products or services. All use of Twism trademarks and logos inure to the benefit of Twism.

Twism will list and/or promote your location(s) to End Users within the Services in a manner as determined by Twism. In connection with such efforts, you grant us, our affiliates and our advertising partners, a limited, non-exclusive license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content (“Merchant Brand Content”) for publication as part of marketing or promotion of your use of Twism to Twism End Users and new End Users anywhere on Twism’s Services and through the online services of Twism’s affiliates and advertising partners. You represent and warrant to Twism that you have the right to provide the Merchant Brand Content to Twism, and that the use, copying, modification and publication of the Merchant Brand Content by Twism and by Twism affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trademark, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.

(j) End User Complaints

If Twism receives any End User complaints related to your acceptance of Twism transactions at your locations, or your campaigns, you shall promptly cooperate with Twism as Twism investigates such complaints. You agree to accept responsibility for any End User complaints and/or customer service issues that may arise in connection with any End User’s redemption or attempted redemption of Credits at your point of sale (“POS”), whether a POS at a physical store or an online POS.

(k) Sales Tax

You represent and warrant that you are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services are or will be provided in connection with your use of the Services and presentation and redemption of associated campaigns. You will make and are solely responsible for the proper calculation of and payment to the appropriate taxing authority of all required tax on all sales of goods and services carried out in connection with the Services.

3. Termination

Either party may terminate this agreement with advance notice of 30 days. Twism may also terminate this Agreement and all rights granted hereunder without notice if you use or market the Services in violation of any applicable law, rule or regulation, or the Agreement. Twism also has the right to immediately terminate or suspend any of your passwords or accounts in the event Twism considers, in its sole discretion, any of your conduct or business practices to be unacceptable, or in the event you breach this Agreement. As a Merchant utilizing the Services, your conduct and business practices reflect upon Twism and the community of Merchants accepting Twism transactions. Twism reserves the right to terminate your use of Services if, in Twism’s sole discretion, Twism determines that your business, conduct, or business practices reflect poorly upon Twism.

Upon expiration or termination of this Agreement for any reason, (a) for a period of no less than 60 days you shall honor all outstanding Coins and Payment Codes (the “Termination Period”) and at the end of the Termination Period you shall (b) transition all such Coins and Payments Codes to a different program run by you or a third party service provider and/or refund such Coins and Payments Codes, which in each case must be refunded, honored, or transitioned pursuant to applicable law; (c) you shall immediately cease the use of any rights licensed hereunder; (d) each party shall make payment to the other of all amounts due hereunder as of the date of termination; and (e) you shall cease the use of all Twism Services and promptly return to Twism or destroy (at Twism’s election) all copies of Twism’s Confidential Information (as defined below). You acknowledge that you are responsible for complying with applicable law in either refunding any Coins or Payment Codes to End Users or in permitting End Users to redeem their Coins or Payment Codes prior to the final termination of this Agreement. Twism will not return prorated portions of any prepaid fees. Should a billing date occur prior to the 60 day termination of service, you will continue to be charged for additional month(s) or year of service, depending on your specific billing terms of use agreed to between you and Twism to use the Services.

All confidentiality, security, and privacy obligations will survive any termination.

4. Relationship

Nothing in this Agreement is to be construed to create a joint venture, franchise, or employment relationship between you and the Company.

5. Merchant Consent to Data Processing

You hereby authorize Twism’s Third Party Partners to access your data in order to send the Third Party Partners data relating to End Users at any of your associated online or physical store retail locations, to provide the Services, and to enable offers that may be of interest to End Users. You hereby authorize Twism to share data relating to you and End Users, including data relating to credit or debit cards transactions, with Payment Infrastructure Providers and other Third Party Partners, for purposes of processing payments and otherwise facilitating the Services.

To the extent you receive any data relating to End User transactions from Third Party Partners (“Merchant Reporting”), you shall use any Merchant Reporting only for the sole purpose of substantiating any fees, and to demonstrate the performance of your offers on an aggregated, anonymized, and de-identified basis in compliance with applicable privacy laws. You shall not do anything that may damage the reputation of our Third Party Partners.

6. Modification of this Agreement

We reserve the right to discontinue, modify, or otherwise alter these Merchant Terms at any time by posting the updated terms on our Website and/or elsewhere on Twism’s Services. All changes are effective immediately. We suggest that you revisit these Merchant Terms from time to time to ensure that you stay informed of any such notifications of changes to the Services. It is your ongoing responsibility to monitor these Merchant Terms for changes. Your continued use of the Services will constitute your acceptance to such changes to the Terms.

If you do not agree to the change, you must cease your use of the Twism service and notify Twism in writing of your termination of this Agreement

We also reserve the right to change or discontinue any aspect or feature of our Services including, but not limited to, requirements for access or use.

7. Customer Data

To the maximum extent permitted by law, Twism is the sole and exclusive owner of all right, title, and interest in and to any non-public data provided to Twism by you, your service providers (such as point of sale (“POS”) providers), or by any End User in connection with the Services, including without limitation all contact information, and inferences drawn from such data (collectively, “Customer Data”). As such, unless the applicable customer or End User has separately taken all steps necessary under applicable law to opt in to provide contact information to you, Twism will not provide you with access to the Customer Data.

You shall at all times abide by Twism’s Privacy Policy ((including any applicable region-specific addendums) and applicable privacy laws.

YYou shall exercise best efforts to maintain the confidentiality and security of non-public Customer Data. Twism reserves the right, but is not obligated, to audit your security and privacy practices. You shall respond to any requests we have about how you manage Customer Data. Whether or not Twism pursues an audit, Twism reserves the right to immediately terminate this Agreement, with or without notice, at any time, based on Twism’s sole determination regarding the sufficiency of your security and privacy practices.

8. Confidentiality

You acknowledge that we may disclose to you certain confidential information belonging to and relating to Twism or the Services. You may disclose to Twism certain information regarding your business and operations. Any party (the “Receiving Party”) receiving information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should clearly be considered confidential or proprietary (collectively, “Confidential Information”) shall keep such Confidential Information confidential during and after the term of this Agreement and not disclose or use except to perform obligations under this Section. Confidential Information does not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) lawfully received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, provided that the Receiving Party provides prompt notice of such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and who are bound by written confidentiality obligations no less restrictive than those set out herein. You shall not disclose any information regarding the results of any testing or evaluation of the Application or Services to any third party without our prior written consent.

9. Disclaimer of Warranty

YOU HEREBY EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NEITHER THE PAYMENT CARD NETWORKS, TWISM, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE, OR (II) THE ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRODUCT DESCRIPTIONS), SERVICE, PRODUCTS, COINS OR PAYMENT CODES PROVIDED THROUGH THE SERVICES. THE SERVICES AND ALL CONTENT, STATEMENTS AND OTHER INFORMATION CONTAINED ON THE SERVICES, AND PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES ARE MADE ACCESSIBLE OR AVAILABLE ON AN "AS ItwiS" AND "AS AVAILABLE" BASIS. TWISM HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE CONTENT, STATEMENTS OR OTHER INFORMATION CONTAINED ON THE SERVICES, OR THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

10. Limitation of Liability; Indemnity

Twism will not be responsible for any loss, damage, harm, injury, delay, or inconvenience suffered or incurred by you with respect to: (i) the Services, (ii) any instruction given by an authorized user of your account or credit or debit card, or (iii) any products or services you obtain or purchase from us, from any Merchants, or from a third party to whom we refer you, or otherwise. To the maximum extent permitted by law, such losses, damages, injuries, delays and inconveniences include, without limitation, (i) direct, incidental, indirect, consequential, special, aggravated, punitive or exemplary damages, (ii) loss of data, profits, information, opportunity, revenues and goodwill, and (iii) any other business interruption, commercial or economic losses. The foregoing limitation of liability applies regardless of the cause of action, even if we have been advised of the possibility of such damages.

In addition, in no event, even if we are negligent, will we be liable for any loss or damage suffered by you that is caused by any one or more of the following:

The actions of, or any failure to act by a third party, including (without limitation) any Merchant or any End User (and no such third party will be considered to be acting as our agent);

Mistakes, errors, omissions, inaccuracies or other inadequacies of, or contained in the Services or any data given by you to us or any third party, including your failure to update your information on our Services;

Any delay, error, interruption or failure by us or any third party to perform or fulfill any obligations to you due to any cause beyond our control or their control, including but not limited to any system malfunctions or any technical failures;

Unsecured communication being inaccurate, intercepted, reviewed or altered by others, or not received by you;

Your access to the Services, including, without limitation, any delay or inability to access the Services;

Your failure to receive or view any communication that has been sent or presented to you, and we will not be responsible for any delay, damage or inconvenience that such failure may cause;

Any damage or interruptions caused by any computer viruses, third party attack (including spoofing, phishing, or other unauthorized access), or other malicious code that may affect you, your computer, or other equipment.

Your failure to fulfill any of your obligations under this Agreement, or to comply with any instructions we may provide to you from time to time in connection with the Services.

YOU HEREBY AGREE TO PROTECT, INDEMNIFY, DEFEND, AND HOLD HARMLESS TWISM AND ITS REPRESENTATIVES FROM AND AGAINST AND PAY FOR (WITHOUT ANY CONDITION THAT TWISM OR ITS REPRESENTATIVES FIRST PAY) ALL CLAIMS, DEMANDS, SUITS, LIABILITIES, DAMAGES, JUDGMENTS, LOSSES AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES OR COURT COST, STATUTORY CIVIL DAMAGES, ECONOMIC DAMAGES INCURRED AS A RESULT OF 1) ANY DISPUTES OR CLAIMS AGAINST YOU FROM ANY THIRD PARTY, 2) ANY INFRINGEMENT UPON THE TRADEMARK OR OTHER INTELLECTUAL PROPERTY OF ANY THIRD PARTY, PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, WHETHER REAL OR PERSONAL, WHICH ARE ASSERTED AGAINST TWISM OR ITS REPRESENTATIVES AS A RESULT OF YOUR USE OF THE SERVICES OR YOUR BREACH OF THIS AGREEMENT, OR 3) ANY DISPUTES OR CLAIMS INCURRED AS A RESULT OF YOUR USE OF THE SERVICES OR YOUR BREACH OF THIS AGREEMENT.

IN NO EVENT WILL TWISM NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SHAREHOLDERS OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, THE CONTENT, STATEMENTS AND OTHER INFORMATION CONTAINED THEREIN, THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SERVICES OR THIS AGREEMENT.

IN NO EVENT WILL TWISM’S ENTIRE LIABILITY EXCEED THE AGGREGATE AMOUNT TWISM HAS RECEIVED FROM THE MERCHANT IN THE PAST TWELVE (12) MONTHS.

To the extent any jurisdiction prohibits exclusions or limitations of liability, any liability is to be limited to the fullest extent permitted by law in that jurisdiction. Nothing in this Agreement affects statutory rights that cannot be waived or limited by contract.

11. Injunctive Relief

Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s patents, copyrights, or trademarks, or any illegal or intentional act affecting the accessibility, functionality, or the security of the Services (collectively, “Injunctive Relief”). With respect to any Injunctive Relief, you hereby consent to the exclusive personal jurisdiction and venue of the state and federal courts located in Santa Barbara, California, without prejudice to any remand or removal rights.

12. Arbitration

We will make every reasonable effort to resolve any disagreements that you have with Twism. If those efforts fail, by using the Services you agree that any claim, dispute, or controversy you may have against Twism arising out of, relating to, or connected in any way with this Agreement the Services or the purchase or sale of any voucher(s), except for Injunctive Relief, is to be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") or by JAMS and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA or by the JAMS Comprehensive Arbitration Rules and Procedures (in each case, the applicable "Rules and Procedures"). You agree further that: (a) the parties shall hold the arbitration at a location determined by AAA or JAMS pursuant to their Rules and Procedures, or at such other location as may be mutually agreed upon by you and Twism; (b) the parties shall require the arbitrator to apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and to honor claims of privilege recognized at law; (c) the parties shall not consent to or provide authority for any claims to be arbitrated on a class or representative basis, so arbitration can decide only your and/or Twism's individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA or JAMS, then the balance of this arbitration provision remains in effect and is to be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision is null and void, and neither you nor Twism will be entitled to arbitrate their dispute.

13. Choice of Law

Any disputes arising out of or related to these Merchant Terms and/or any use by you of the Services are to be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the Arbitration provision is governed by the Federal Arbitration Act.

14. Additional Disclosures

This Agreement sets forth the entire understanding and agreement between you and Twism as to the subject matter hereof, and supersedes any and all prior discussions, agreements, and understandings of any kind (including, without limitation, any prior versions of these Merchant Terms) and every nature between us. No waiver by either you or Twism of any breach or default or failure to exercise any right allowed under this Agreement is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Agreement. The section headings used herein are for convenience only and are of no legal force or effect. If a court of competent jurisdiction or arbitrator holds any provision of our Agreement invalid, such invalidity does not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of our Agreement continue in full force and effect. Correspondence should be directed to: support@twism.com.