Terms and Conditions

Last Updated: June 9, 2022

Your access and use of the Rakuten Card USA, Inc. (“RCUSA,” “we,” “us,” or “our”) features, products, sites, and services (individually and collectively, the “Services”), is subject to the terms and conditions in these Terms and Conditions (the “Terms” or “Agreement”).

You must agree to the Terms in order to use the Services. If you use any aspect of the Services, or click to accept or agree to the Terms if presented to you in a user interface for the Services, we will understand this as your acceptance of and agreement to the Terms. By accepting the Terms or using the Services, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept the Terms, then you may not use the Services. If you are using the Services on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to the Terms. If you do not have such authority, then you may not use the Services on behalf of your employer or such other entity and you must immediately stop using the Services.

1. Updates to the Terms

RCUSA may update the Terms at any time, and RCUSA will post the updated version of the Terms or otherwise provide notice of the update. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Services after the update. If at any point you do not agree to any portion of the Terms then in effect, you must immediately stop using the Services.

2. Provision of the Services

You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Services. You acknowledge and agree that RCUSA may make changes to any aspect of the Services at any time without notifying you in advance.

3. Accounts, Security and Payments

3.1 Users; Accounts

To access certain aspects of the Services, you must have an account (an “Account”). You can apply for an Account by completing the applicable application process. Multiple users may be associated with and manage a single Account. You may be required to provide information about yourself and/or your business as part of the application process or to continue using the Services. You agree that any application information that you submit to RCUSA will be correct, accurate and up to date. Each Account is registered to the corresponding individual user or business only and may not be transferred to a third party under any circumstances.

Each Account must designate an individual officer or owner of such business or organization to serve as the principal user (the “Principal User”) on the Account who has significant responsibility to control, manage, or direct the entity. The Principal User shall be personally liable for the Account should the Account fail to meet its obligations under the Terms.

3.2 Account Security

We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. We cannot guarantee, however, that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. Maintaining the security of your Account is very important. You are solely responsible for maintaining the confidentiality of your password/passphrase for accessing your Account. You agree to notify RCUSA immediately if you become aware of any unauthorized use of your password or of your Account.

4. Use Requirements

4.1 Representations and Warranties

You represent and warrant to us that: (a) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (b) the name identified by you when you applied is your name or business name under which you sell goods and services; (c) any transaction submitted by you will represent a bona fide sale by you; (d) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (e) you will fulfill all of your obligations to each purchaser for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (f) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (g) except in the ordinary course of business, no transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity; (h) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service; (i) your use of the Services will be in compliance with the Terms.

4.2 License Grant

Subject to the Terms, RCUSA hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Services, which may only be used in accordance with the Terms and any other rules, restrictions or documentation set forth by RCUSA from time to time.

4.3 Updates to the Services

You acknowledge and agree that RCUSA may update the Services with or without notifying you and add or remove features or functions to the Services at any time in its sole discretion. You acknowledge and agree that RCUSA has no obligation to make the Services available to you, make any subsequent versions of the Services available to you or to continue to support the Services in any way. You acknowledge that your access to the Services may not be continuous, features may change during your use of the Services, and RCUSA may terminate your access to the Services or stop offering the Services at any time.

4.4 Taxes

You are responsible for determining any and all taxes assessed, incurred or required to be collected, paid or withheld in connection with your use of the Services. You are solely responsible for collecting, withholding, reporting and remitting any taxes to the appropriate tax authority. RCUSA is not obligated to, and will not, determine whether taxes apply, or calculate, collect, report or remit any taxes to any tax authority arising from your use of the Services. Any tools that RCUSA provides as part of the Services to calculate percentages or dollar amounts are provided without warranty and are provided solely for your convenience; RCUSA disclaims any liability whatsoever for your access or use of such tools.

5. Restrictions of Use

5.1 Use of the Services

RCUSA permits you to view and use the Services solely for your own limited commercial use, consistent with the intended purpose of the Services. You agree not to license, create derivative works from, transfer, sell or resell any information, content, materials, data or services obtained from the Services. RCUSA reserves the right to add or remove information, content or services from the Services at any time at its sole discretion.

5.2 Accessing the Services

You agree not to access, or attempt to access, the Services by any means other than through the user interfaces provided by RCUSA. You specifically agree not to access, or attempt to access, the Services through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers), and you agree to comply with the instructions contained in any robots.txt file presented to you by us. You agree that each user of the Services will maintain his or her own login credentials and that login credentials will not be shared or granted to multiple users.

5.3 No Violation of Laws

You agree that you will not, in connection with your use of the Services, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

5.4 Use Restrictions

5.4.1

You may not: (i) remove any proprietary notices from the Services; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Services; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Services, including, without limitation, through sublicense, to any other person or entity without the prior written consent of RCUSA; or (iv) make any false, misleading or deceptive statement or representation regarding RCUSA or the Services.

5.4.2

Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Services (or any servers, systems or networks connected to the Services) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Services or any other person’s or entity’s use of the Services (or any servers, systems or networks connected to the Services); (ii) attempt to gain unauthorized access to the Services, an Account registered to other users, or any servers, systems or networks connected to the Services; (iii) use the Services for any commercial purpose unless consistent with the Terms and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Services, unless you are specifically authorized to do so in a separate written agreement with RCUSA; (iv) use the Services to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Services to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Services to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not use the Services for any other unlawful, prohibited, abnormal or unusual activity as determined by RCUSA in its sole discretion.

5.5 No Data Mining or Harmful Code

You agree that you will not (a) obtain or attempt to obtain any information from the Services including, without limitation, email addresses or phone numbers of other Merchants, their purchasers, or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Services, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Services.

5.6 Violation of the Terms

You acknowledge and agree that you are solely responsible, and RCUSA has no responsibility or liability to you or any other person or entity, for any breach by you of the Terms or for the consequences of any such breach. RCUSA may at its option, terminate its relationship with you or suspend your Account immediately if it determines you are using the Services contrary to the restrictions found in this section 5 or any other terms of the Terms.

6. Links

6.1 Links from the Services

The Services may contain links to websites operated by other parties. RCUSA provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of RCUSA and RCUSA is not responsible for the content available on the other websites. Such links do not imply RCUSA’s endorsement of information or material on any other website and RCUSA disclaims all liability with regard to your access to and use of such linked websites.

6.2 Links to the Services

Unless otherwise set forth in a written agreement between you and RCUSA, you must adhere to RCUSA’s linking policy as follows: (a) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with RCUSA’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with RCUSA or Rakuten Group Inc.; and (c) when selected by a user, the link to the Services must display the Services on full-screen and not within a “frame” on the linking website, except as permitted by RCUSA for purposes of embedding a campaign form onto a Merchant’s website. RCUSA reserves the right to revoke its consent to the link at any time and in its sole discretion.

7. Intellectual Property

7.1 Trademarks

The RCUSA name and logo are trademarks and service marks of RCUSA and Rakuten Group, Inc. Unless permitted in a separate written agreement with RCUSA, you do not have the right to use any of RCUSA’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.

7.2 Ownership

You acknowledge and agree that RCUSA, or its licensors, owns all right, title and interest in and to the Services, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Services are protected by U.S. and international copyright laws. Further, you acknowledge that the Services may contain information that RCUSA has designated as confidential and you agree not to disclose such information without RCUSA’s prior written consent.

7.3 Feedback

We, including our third party partners and our affiliates, may ask you for Feedback (as defined below) on your experience with the Services. RCUSA shall become the owner of any reviews, comments, suggestions or other feedback regarding the Services posted to the Services or on RCUSA’s social media pages (collectively, “Feedback”). RCUSA will not be required to treat any Feedback as confidential and will not be liable for any Feedback posted on the Services or elsewhere. Without limitation, RCUSA will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, including to advertise and promote RCUSA, without compensation to you or any other person sending the Feedback.

7.4 User Content

To the extent that you decide to post any content (“User Content”), including your profile information or Feedback, on or about the Services, you agree that your User Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant RCUSA all of the license rights granted herein. You acknowledge that you are responsible for whatever material you submit, and you, not RCUSA, have full responsibility for the User Content, including its legality, reliability, appropriateness, originality, and copyright. RCUSA may refuse to accept or transmit User Content. Additionally, RCUSA shall have the right to delete, edit, modify, reformat, excerpt or translate any of your User Content. You specifically waive any “moral rights” in and to the User Content.

7.5 Copyright Agent

RCUSA respects the intellectual property rights of others and requires that people who use the Services do the same. RCUSA maintains a policy of terminating users of the Services who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:

  • Your address, telephone number, and email address;

  • A description of the copyrighted work that you claim has been infringed;

  • A description of where the alleged infringing material is located;

  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and

  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

    Copyright Agent, Legal Department Rakuten Card USA, Inc.
    Email: support@rakutencard.com

8. Privacy Policy

By accepting the Terms or using the Services, you represent that you have read and consent to our Privacy Policy (https://www.rakutencard.com/docs/privacy/) (“Privacy Policy”) in addition to the Terms. RCUSA may revise the Privacy Policy at any time, and a link to the new versions will be posted or otherwise disclosed. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Services. By using the Services, you agree to the then-current versions of the Terms and Privacy Policy.

9. Location

The Services are operated by RCUSA in the United States. If you choose to access the Services from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.

10. Submitted Content

10.1 Content of Communications

RCUSA is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Services or any materials submitted or made available through the Services (“Submitted Content”). By using the Services, you agree that any content that you submit may be viewable by other users of the Services. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Services. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. RCUSA may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Services or its customers, or otherwise enforce the terms of the Terms. Further, RCUSA may in its sole discretion remove such content and terminate an Account if the Merchant or any user submits any content that is in breach of the Terms.

10.2 License to Submitted Content

RCUSA does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant RCUSA a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Services and RCUSA’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each user of the Services a non-exclusive license to access your Submitted Content through the Services while the Submitted Content is made available through the Services. You may take down any of your Submitted Content at any time; however, you acknowledge and agree that RCUSA may still have access to such Submitted Content and that the above license granted by you to RCUSA will remain in effect despite your removal of the Submitted Content from the Services. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 11.2.

10.3 No RCUSA Liability for Submitted Content

You acknowledge and agree that: (a) by using the Services, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (b) you are solely responsible for, and RCUSA has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on or through the Services; (c) RCUSA does not guarantee any confidentiality with respect to your Submitted Content; and (d) RCUSA is not responsible for any Submitted Content provided by third parties that you may have access to through your use of the Services and all Submitted Content is the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) RCUSA has no control over and is not responsible for the use of Submitted Content by its users, including any user that has uploaded Submitted Content to a personal device; and (ii) RCUSA may not be able to remove Submitted Content that is uploaded onto a user’s device. RCUSA does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content. You acknowledge that your Submitted Content is your sole responsibility. You agree, under no circumstances, will RCUSA be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.

10.4 RCUSA Right to Modify or Remove Submitted Content

You acknowledge that RCUSA has the right to pre-screen your Submitted Content but has no obligation to do so. At RCUSA’s sole discretion, any Submitted Content may be included in the Services in whole or in part in modified form. In addition, RCUSA and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Services that violates the Terms or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.

11. Termination of Services

11.1 Termination

If any Service is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and Account data stored on our servers, and (e) that we shall not be liable to you or any third party for termination of access to the Service, deletion of your information or Account data, or export of your information or Account data.

11.2 RCUSA’s Right to Terminate

RCUSA reserves the right to deny service to any person or entity at RCUSA’s sole and absolute discretion. You acknowledge and agree that RCUSA may stop providing the Services or restrict your use of the Services at any time, without notifying you in advance, for any reason or no reason. If RCUSA disables your access to your Account, you may be prevented from accessing the Services, your Account details or any materials contained in your Account.

12. Children

The Services are not directed toward children under 18 years of age, and RCUSA does not knowingly collect information from children under 18 or allow them to make payments using the Services or to create or access an Account. If you are under 18, please do not submit any personal information about yourself to RCUSA.

13. Disclaimer of Warranties

13.1 GENERAL DISCLAIMER

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RCUSA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. RCUSA MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICES. RCUSA DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICES WILL BE CORRECTED; OR (e) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

13.2 DISCLAIMER REGARDING NO RELATIONSHIP BETWEEN RCUSA AND MERCHANTS OR OTHER CHARITABLE ORGANIZATIONS

RCUSA does not make any representations or guarantees regarding Merchants utilizing the Services. Use of the Services in no way represents any endorsement by RCUSA of a Merchant’s existence, legitimacy, ability, policies, practices or beliefs. RCUSA does not have control of, or liability for, goods or services that are paid for with the Services.

A charitable organization may use RCUSA to accept payments as a Merchant. Not all charitable organizations are tax-exempt, and not all contributions to charitable organizations are tax-deductible. Charitable organizations are responsible for correctly classifying themselves and their transactions, issuing any required reports and receipts, and making any required tax or other filings. Payers are responsible for verifying the status of organizations to which they donate and reporting their donations correctly for tax and other purposes. RCUSA specifically disclaims any liability in this regard.

14. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY

14.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RCUSA AND ITS AFFILIATES, LICENSORS, PROCESSORS, SUPPLIERS, NETWORKS, BANKS, AND OTHER BUSINESS PARTNERS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:

14.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, EVEN IF RCUSA OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;

14.1.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;

14.1.3 THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICES; OR

14.1.4 (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, OR ANY DELAY IN PERFORMING OUR OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE FAILURE OR DELAY IS CAUSED BY AN EVENT OR CONDITION BEYOND OUR CONTROL; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.

14.2 WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF RCUSA OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT OF FEES EARNED BY RCUSA IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of RCUSA and the Related Parties shall be limited to the fullest extent permitted by law.

15. Indemnification

You agree to defend, indemnify and hold RCUSA and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Services; or (b) your breach of the Terms or any other policies that RCUSA may issue for the Services from time to time.

16. Governing Law; Jurisdiction

The Terms are governed by California law and applicable federal law (including the Federal Arbitration Act), without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and RCUSA agree that, except as otherwise provided in Article 17 below, the state and federal courts located in San Francisco County, California will have exclusive jurisdiction of all disputes arising out of or related to the Terms or your use of the Services and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, RCUSA shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.

17. Binding Arbitration

It is RCUSA’s goal that the Services meet your expectations and lives up to our promises to you. However, there may be instances when you feel that RCUSA has not fulfilled its obligations or you may have a different type of problem or dispute that needs special attention. In those instances, RCUSA is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with RCUSA, you acknowledge and agree that you will first give RCUSA an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you must first send us a written description of your problem or dispute within 30 days of the Services being performed by sending an email to support@rakutencard.com. You then agree to negotiate with RCUSA in good faith about your problem or dispute for at least 60 days after RCUSA’s receipt of your written description of it. If we cannot come to a resolution, you agree to abide by the arbitration procedures below.

17.1 Arbitration Procedures

You and RCUSA agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to the Terms (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in the Terms. In the event of a conflict between the terms set forth in this Article 17 and the JAMS Rules, the terms in this Article 17 will control and prevail. The arbitration will take place in San Francisco, California, unless the parties agree to video, phone or internet connection appearances. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

Except as otherwise set forth in Section 17.3, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and RCUSA will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in the Terms, (a) you and RCUSA may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

17.2 Limitations

You and RCUSA agree that any arbitration shall be limited to the Claim between RCUSA and you individually. YOU AND RCUSA AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

17.3 Exceptions to Arbitration

You and RCUSA agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of RCUSA’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

17.4 Severability

You and RCUSA agree that if any portion of this Article 17 is found illegal or unenforceable (except any portion of Section 17.3), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 17.3 is found to be illegal or unenforceable, then neither you nor RCUSA will elect to arbitrate any Claim falling within that portion of Section 17.3 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within San Francisco, California, and you and RCUSA agree to submit to the personal jurisdiction of that court.

18. General

18.1 Terms Revisions

The Terms may only be revised in a writing signed by RCUSA or published by RCUSA.

18.2 Supplemental Terms

Supplemental terms may apply to your use of the Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms, including any agreement between you and us, and the Privacy Policy are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.

18.3 No Partnership

You agree that no joint venture, partnership, employment, or agency relationship exists between you and RCUSA as a result of the Terms or your use of the Services.

18.4 Assignment

RCUSA may assign its rights under the Terms to any person or entity without restriction. The rights granted to you under the Terms may not be assigned without RCUSA’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.

18.5 Severability

If any part of the Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.

18.6 Survival

All provisions of the Terms that are reasonably necessary to accomplish or enforce the purpose of this Agreement shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

18.7 Geographic Limits of Services

The Services are controlled and operated from facilities in the United States. RCUSA makes no representation that materials contained on the Services or products described or offered on or via the Services are appropriate or available for use in jurisdictions outside the United States, or that the Terms comply with the laws of any other country. Accessing the Services is prohibited from territories where the content is illegal. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. If you access the Services from other locations, you do so at your own initiative and are responsible for compliance with local laws. You agree that you will not access the Services from any territory where the contents are illegal, and that you, and not RCUSA, are responsible for compliance with applicable local laws.

18.8 Limitation on Time to Initiate a Dispute

Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one year from the event giving rise to the cause of action.

18.9 Attorneys’ Fees

In the event any litigation or arbitration is brought by either party in connection with the Terms, except as otherwise provided in Section 17.4, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

18.10 No Waiver

Our failure to enforce any provision of the Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by RCUSA of any provision, condition or requirement of the Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.

18.11 Notices

All notices given by you or required under the Terms shall be in writing and sent to support@rakutencard.com.

18.12 U.S. Government Rights

If you are, or are entering into the Terms on behalf of, any agency or instrumentality of the United States Government, the software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable.

18.13 Equitable Remedies

You acknowledge and agree that RCUSA would be irreparably damaged if the terms of the Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of the Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.

18.14 Entire Agreement

The Terms, including the documents referenced in the Terms, constitutes the entire agreement between you and RCUSA with respect to the Services and supersedes any and all prior agreements between you and RCUSA relating to the Services.