Upon purchase, acceptance or receipt of any Fox Cigar gift card (“Gift Card”), the owner of the Gift Card agrees to be bound by these Gift Card Terms and Conditions (these “Terms”). In these Terms, “you” and “your” means the person or cardholder who has purchased, received or currently possesses a Gift Card and “Fox Cigar,” “we” and “us” means Fox Companies, LLC d/b/a Fox Cigar Bar, an Arizona limited liability company.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Redemption of a Gift Card
Gift Cards can be used at any participating Fox Cigar locations or on the Fox Cigar website at the time of redemption to pay for charges including cigars, accessories, kits, and humidors. Gift Cards may not be applied retroactively to pay for amounts already paid or charged in connection with prior purchases. A Gift Card purchased and delivered electronically via email (“e-Gift Card”) can be used in the same way as a physical Gift Card. The only differences between a physical Gift Card and an e-Gift Card are the methods of delivery and presentation. An e-Gift Card can be printed out for redemption or shown at time of purchase in a physical Fox Cigar location. Gift Cards do not expire. Maintenance, dormancy, or service fees do not apply to balances on Gift Cards. Gift Cards may be combined with other forms of payment. Any charges in excess of the Gift Card’s stored value may be settled in cash, by major credit cards or other means of payment accepted by Fox Cigar. If the Gift Card is redeemed for charges that are less than the value of the Gift Card, the balance in excess of such charges will remain on the Gift Card for future use.
Cancellation Policy
To the extent permitted by applicable law, Gift Cards cannot be reloaded, returned, redeemed for cash, used to purchase other Gift Cards, resold, redeemed for more than face value, transferred for value, or used for promotional, advertising, marketing, sweepstakes or commercial activities without the written approval of Fox Cigar. In the case of any dispute, Fox Cigar reserves the right to cancel any Gift Card that violates any of these Terms or applicable law. Promotional credits are separate from Gift Cards, and have separate terms and conditions. Please refer to the Promotional Credits Terms and Conditions for terms applicable to any such promotional credits received. Gift Cards that were obtained by unlawful means shall be null and void. Further, Fox Cigar is not responsible for, and assumes no liability for, any unlawful conduct or fraud by any third party associated with the purchase or use of any Gift Card. Gift Cards shall be used in compliance with these Terms and all applicable laws, rules and regulations. Gift Cards shall not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers or Fox Cigar.
Lost and Stolen Cards
The risk of loss and title for Gift Cards pass to you upon Fox Cigar’s electronic transmission of the Gift Card to you or the designated recipient, or delivery to you, whichever is applicable. Gift Cards must be obtained from Fox Cigar or an authorized third party, and you are responsible for safeguarding your Gift Card from unauthorized use. The Gift Card is a bearer instrument and Fox Cigar is not responsible for lost, stolen or destroyed cards, or if any Gift Card is used without your permission.
e-Gift Cards
For e-Gift Cards purchased from the Fox Cigar website, Fox Cigar shall not be responsible for the non-receipt or the delay in receiving such e-Gift Card by its intended recipient for reasons beyond its control, including for example, (i) delay in the transmission of data due to system issues, (ii) inaccuracy of the contact and/or delivery details provided by the purchaser, or (iii) the fact that the email sent by or on behalf of Fox Cigar is deemed to be spam or unwanted email.
Disclaimers and Limitation of Liability
TO EXTENT PERMITTED BY APPLICABLE LAW, FOX CIGAR MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS OR ANY PURCHASES MADE WITH THE GIFT CARD, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR 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.
FOX CIGAR AND ITS AFFILIATES SHALL HAVE NO LIABILITY FOR ANY LOSS OF PROFITS, USE, SAVINGS, PRODUCTIVITY OR GOODWILL, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY GIFT CARD, INCLUDING THE USE THEREOF OR THE USE OF ANY GOODS OR SERVICES PURCHASED WITH THE GIFT CARD (HOWEVER ARISING, INCLUDING NEGLIGENCE). IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOX CIGAR OR ITS AFFILIATES HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (A) UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF A GIFT CARD THROUGH ACCIDENT, MISUSE, OR FRAUDULENT MEANS OR DEVICES BY YOU OR ANY THIRD PARTY; (B) ANY CIRCUMSTANCES BEYOND FOX CIGAR’S REASONABLE CONTROL; (C) THE USE OF THE GIFT CARD BEING SUSPENDED OR PROHIBITED BECAUSE IT HAS BEEN REPORTED LOST OR STOLEN, OR FOX CIGAR BELIEVES IT IS BEING USED SUSPICIOUSLY OR FRAUDULENTLY OR IS BEING SUBJECTED TO UNAUTHORIZED USE; (D) THROUGH NO FAULT OF FOX CIGAR, YOUR NOT HAVING SUFFICIENT FUNDS ON A GIFT CARD TO COVER A TRANSACTION; OR (E) INABILITY TO USE A GIFT CARD BECAUSE FOX CIGAR’S SYSTEM IS NOT WORKING PROPERLY. YOU AGREE THAT FOX CIGAR AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY INTERRUPTION OF SERVICE. NOTWITHSTANDING THE FOREGOING AND THE DISCLAIMER OF WARRANTIES IN THESE TERMS, IN THE EVENT THAT FOX CIGAR OR ITS RESPECTIVE AFFILIATES ARE FOUND LIABLE TO YOU, YOU SHALL ONLY BE ENTITLED TO RECOVER ACTUAL AND DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT LOADED ONTO YOUR GIFT CARD.
Dispute Resolution and Binding Arbitration
YOU AND FOX CIGAR ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
For all disputes or claims you have, prior to participation in the arbitration procedures identified herein, you must first give us an opportunity to resolve your claim by sending a written description of your claim (“Notice of Dispute”) to Fox Cigar. The Notice of Dispute must contain enough information for us to identify your account and attempt to resolve your claim, including (a) your name and contact information; (b) account number; (c) a written description of the problem, relevant documents and supporting information; and (d) a good faith calculation of the damages you claim to have suffered and a statement of the specific relief you are seeking. You may be represented by an attorney or other person in that process. However, if you choose to do so, you must also submit with your Notice of Dispute a signed written authorization allowing us to discuss your account with your attorney or other representative. Similarly, if we have any dispute with you, we will send a Notice of Dispute to your billing address. You and we each agree to negotiate any claim(s) between us in good faith. You and we each agree that neither of us may commence any arbitration or court proceeding unless you and we are unable to resolve the claim(s) within 60 days after receipt of the Notice of Dispute and the party who sent the Notice of Dispute has made a good faith effort to resolve the claim during that time.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND FOX CIGAR ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF THE GIFT CARD THAT HAS NOT BEEN RESOLVED THROUGH THE NOTICE OF DISPUTE PROCESS IDENTIFIED ABOVE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified in these Terms. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by Fox Cigar that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to you. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against Fox Cigar for you. You may elect to pursue your claim in small-claims court rather than arbitration if you provide Fox Cigar with written notice of your intention to do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR FOX CIGAR WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
Miscellaneous
Use of this Gift Card constitutes acceptance of these Terms. Except to the extent prohibited by law, Fox Cigar reserves the right to amend the Terms without prior notice, from time to time, in its sole discretion. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Fox Cigar may assign this agreement without recourse at any time without notice. In the event of such assignment, Fox Cigar will cease to be the card issuer and obligor, and the assignee will become the sole obligor to cardholders. The waiver by Fox Cigar of any provision or violation of these Terms will not operate or be construed as a modification of these Terms or waiver of any other violation. All matters arising out of or relating to these Terms shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
