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DirectPay Terms and Conditions, Electronic Consent, and Payment Authorization Agreement
Effective September 1, 2020
This agreement containing DirectPay Terms and Conditions, Electronic Consent, and Payment Authorization (“Agreement”) is between you and Albertsons Companies, Inc. (“Albertsons”). This Agreement includes information about your rights and responsibilities relating to and governing the enrollment and use of the DirectPay Service (the “Service” or “DirectPay”) at participating Albertsons, Safeway, ACME, Amigos, Carrs, Haggen, Jewel Osco, Lucky, Pak N Save, Pavilions, Randalls, Shaw’s, Star Market, Super Saver, Tom Thumb, United and United Express, and VONS stores ("Albertsons Stores"). For a list of currently participating Albertsons Store locations, see https://www.vons.com/pay/directpay.html. In this Agreement, the terms "you" and "your" include all persons who use DirectPay. The words "Albertsons", "we", "our", and "us" refer to Albertsons Companies, Inc. and its retail subsidiaries. Your electronic signature on this Agreement or use of DirectPay indicates your acceptance of this Agreement.
You agree, as a user of DirectPay, to comply with this Agreement. Participation in the Service is offered at the discretion of Albertsons and may be withdrawn by Albertsons in its discretion. Please read this Agreement carefully before participating in the Service. If at any time you do not accept any of the terms and conditions of this Agreement, or are no longer satisfied with the Service, your sole remedy is to end your participation in the Service. You may not use the Service for commercial purposes or in any way that harms Albertsons or any other person or entity, as determined by Albertsons in its sole discretion.
1. Eligibility
Enrollment in DirectPay is open to people 18 years of age and older who live in the United States. When you register for the Service, you will be asked to provide the bank routing and account number you wish to enroll for use with the Service (your “Affiliated Account”), both of which will need to be verified by us prior to your enrollment in DirectPay. You will also be asked to confirm your acceptance of the terms and conditions of this Agreement. Upon completion and approval of your registration, you will be enrolled in the Service. Companies, associations or any other business entities are not eligible for enrollment in the Service. Albertsons and/or its third-party service providers reserve the right to exclude anyone from using the Service at any time, in each’s respective discretion. If at any point you become ineligible for the Service according to this Agreement, you must cease using the Service immediately.
2. Electronic Consent for Internet Enrollment
By enrolling in the Service, you consent and unconditionally agree to: (a) allow your Affiliated Account to be debited electronically to pay for purchases you initiate through the Service and for any other applicable fees and charges; (b) electronically sign this Agreement; (c) use an electronic signature that evidences your identity; (d) Albertsons obtaining personally identifiable information from you and sharing it with its third-party service providers, including, without limitation, payment processors, consumer reporting agencies, and collection agencies, as allowed by law; (e) Albertsons electronically confirming that you meet our minimum system requirements; and (f) to the extent allowed by law, receiving all required disclosures, notices and statements, including any changes in terms, in electronic form by either downloading such documents to your personal computer ("PC"), electronic tablet, or mobile device or by viewing them as posted on a DirectPay enrollment website.
2.1 Categories of Communications
You understand and agree that we, or our third party service providers acting on our behalf, may electronically provide to you, or in our sole discretion mail to you, certain documents for your enrollment in and use of the Service as well as disclosures and notices regarding the debiting or crediting of your Affiliated Account, your use of the Service, your relationship with us and/or our third party service providers, and/or other programs, products or services that are or may in the future be made available to you ("Communications"). Such Communications may include, but are not limited to: (a) this Agreement; (b) periodic disclosures or notices relating to any purchases/payments initiated through the Service, account debits and credits, and services we offer or render, including, but not limited to, any statement, notice or communication that may be required by the Electronic Fund Transfer Act and Federal Reserve Regulation E, the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act or other applicable federal or state laws and regulations; (c) any notice or disclosure regarding the imposition of a fee or charge for the Service or any notice or disclosure regarding the imposition of any fee or charge for an electronic debit or other payment made by you under this Agreement that is returned for any reason, such as insufficient funds or as a result of a stop payment order; (d) any change to the terms, conditions or rules applicable to the Service; (e) privacy statements or notices; and (f) certain statements that we or our third party service providers are legally required to provide to you.
2.2 Hardware and Software Requirements
To enroll in the Service through the Internet, you must have: (a) personal computer (PC), electronic tablet, or a mobile device (i.e., iPhone or Android) with our browser-based “Deals & Rewards” Loyalty application, or the “OneTouch Fuel” Mobile App (each of which may be referred to herein as the “App”) installed. Our mobile device applications can be downloaded from the Apple App Store or Google Play.
2.3 Manner of Consent and How to Withdraw Your Consent
By agreeing to this Agreement through the DirectPay enrollment website or mobile device application, you acknowledge, represent and warrant that you can access Communications that we electronically provide to you. By clicking on the "I Agree" button on a DirectPay enrollment website or the App, you are stating that you are currently accessing a DirectPay enrollment website with a computer system or App (or other storage device) that allows you to transmit, receive, print and retain the Communications.
You may withdraw your consent to receiving Communications electronically by providing notice of your withdrawal of such consent to us, in writing, at Payment Services, P.O. Box 29241, Phoenix, Arizona 85038-9241, and identifying yourself by first name, last name, Card or Cardless Payment Number, telephone number, and Affiliated Account. Such withdrawal will become effective after we have had a reasonable amount of time to act upon it. Your consent shall remain in force until withdrawn in the manner provided in this paragraph.
2.4 Obtaining Paper Copies
You may print a copy of this Agreement or, upon request, obtain a paper copy of this Agreement, and any legally required Communications for up to 12 months after you execute them, or they have been provided or made available to you electronically. You may request such a paper copy by writing to us at Payment Services, P.O. Box 29241, Phoenix, Arizona 85038-9241. Be sure to specify your name and the address to which the paper copy should be mailed. We do not currently impose a fee if you request a paper copy, although we retain the right to charge fees at a later date for providing paper copies if we provide you with a notice of such a change of terms as required by law.
2.5 Communicating in Writing and Retaining a Copy for Your Records
All Communications in electronic format provided to you by us will be considered written communications. You should print, download and/or retain a copy of this DirectPay Terms and Conditions and Electronic Consent Agreement and any other Communications that you execute, or that we provide or make available to you electronically for your permanent records. If you enroll for the Service through the Internet, you may print a copy of this Agreement or, upon request, we will send you a copy of the Agreement with terms and conditions in effect at the time of your enrollment.
3. Club Card Customer Agreement Statement
If you were issued a Club Card, your use of the Club Card will be associated with the Service, subject to your acceptance of the terms and conditions of this Agreement. By applying for the Service, you agree to join the Albertsons Club, but will not be issued a Club Card. Rather, you will enroll using a self-chosen ten-digit access number ("Cardless Payment Number") and PIN. Albertsons respects your privacy and does not sell or lease personally identifying information (e.g., your name, address, and telephone number) to non-affiliated companies or entities except as allowed by law, and by entering into this Agreement, you confirm and authorize the scope of this restriction. Albertsons records information regarding the purchases made with your Club Card or transactions made through the Service to help provide you with special offers and other information. Albertsons also may use this information to provide you with personally tailored coupons, offers and other information that may be provided to Albertsons by other companies.
By opting-in to link your new DirectPay account to your existing Club Card account, you agree that Albertsons may use the new information obtained from your DirectPay account in connection with your Club Card account. Account linking is subject to accurate record identification and approval.
4. DirectPay Privacy Policy/Confidentiality
We collect nonpublic personally identifiable information about you from the following sources: (a) information we receive from you on enrollment applications and other forms; (b) information about your transactions with us, our affiliates or others; and (c) information we receive about you from third parties, including, but not limited to, consumer reporting agencies. We may disclose information to our affiliates and to third parties about your transactions initiated with the Service: (i) where it is necessary to complete the transaction; (ii) in order to authenticate your identity or verify information about your Affiliated Account; (iii) if you have chosen to link your DirectPay account to your Albertsons Club account, in order for Albertsons to link your DirectPay account to your Club account and to update your Club account data; (iv) in order to comply with government and supervising agency requirements; (v) in order to comply with court orders or other legal requirements; (vi) in response to legal process; (vii) to respond to inquiries and/or complaints initiated by you; (viii) as legally permitted; and (ix) if you give us written permission. We may disclose your nonpublic personally identifiable information to our affiliates and to companies that perform marketing services on our behalf and to financial institutions with which we have joint marketing agreements and as otherwise permitted by law. We may also share information about our experiences and transactions with you or your Card, PIN, Cardless Payment Number, or mobile device App with our affiliates and subsidiaries.
In processing transactions involving the Service, except as provided above, we restrict access to your nonpublic personally identifiable information to those employees, agents and third-party service providers who need to know such information to help us provide the Service to you. We maintain physical, electronic and procedural safeguards that comply with applicable government standards to guard your nonpublic personally identifiable information.
5. Using DirectPay
Before you may use the Service, your registration must be approved by us. In order for you to perform a transaction using DirectPay, where available, you must either: (a) use your Card and PIN; or (b) input your Cardless Payment Number and PIN (referred to as a "Cardless Transaction"), or (c) scan the DirectPay QR code in the Albertsons Club Loyalty app; or (d) select DirectPay in the OneTouch Fuel app, or (e) select DirectPay to transfer funds to Albertsons Cash (Stored Value Account) in the Albertsons Club Loyalty app. If you forget your PIN or Cardless Payment Number, you will need to call us to apply for a new PIN or Cardless Payment Number. Please call us at 866-392-9517 if you need to apply for a new PIN or Cardless Payment Number if you want to cancel your Card, Cardless Payment Number or PIN enrollment in the Service.
You may use DirectPay, subject to certain limits, to pay for purchases at participating Albertsons Stores and, in connection with such purchases, to withdraw cash ("Cash-Back") from available funds in your Affiliated Account. We reserve the right to decline enrollment and to decline any one or more transactions submitted through the Service. Subject to applicable law, we may, in our sole discretion, change limitations and restrictions on your DirectPay account. We reserve the right, in our sole discretion, to refuse a transaction involving DirectPay or to terminate your right to use DirectPay at any time, including, but not limited to, when we believe that the transaction may not be authorized, may be disputed, or may be erroneous or we believe that you may not have sufficient available funds in your Affiliated Account for the transaction. Your financial institution or the National Automated Clearing House Association (“NACHA”) may impose additional restrictions and limitations. If your Affiliated Account number changes, or your Affiliated Account is changed from a checking account to a savings account, or if your Affiliated Account becomes inactive or is closed, you agree to notify us immediately by calling us at 866-392-9517 and to discontinue using DirectPay until your information has been updated.
You agree to maintain a sufficient balance of available funds in your Affiliated Account to immediately cover the amounts of all purchases and Cash-Back transactions you make with the Service. Your complete authorization for the debit of your payment order can be found below in Section 9. In the event that the Payment Order is returned unpaid due to lack of available funds, your access to the Service may, in our sole discretion, be terminated or suspended, and you agree to deposit sufficient funds immediately to your Affiliated Account to cover any overdrafts and fees.
You agree to receive calls for the purposes of servicing your account and/or collecting on your unpaid Payment Order, including autodialed and/or pre-recorded message calls, texts, emails, mobile application push notifications, or any other method of communication permitted by law from us at any of the telephone numbers (including mobile telephone numbers) and/or email address that we have collected from you as authorized and described in our Privacy Policy. Telephone communication with us about the Service may be monitored and/or recorded without further notice, so long as such recordation complies with all applicable laws and regulations, and you hereby consent to such recording.
Each DirectPay account is subject to a purchase limit of $500 per day (unless we have notified you, in writing, of a different limit) and such other limits as may be imposed by your financial institution. We reserve the right in our sole discretion to set additional limits on the Service, including, but not limited to, changing the dollar amount of goods and services that may be purchased and the Cash-Back amounts that can be obtained through the use of DirectPay. We may change such limits as we deem necessary.
You hereby authorize us to obtain, upon enrollment and from time to time thereafter in connection with transactions you initiate, your personal identification profile or other information from a consumer reporting agency, our third-party service providers or other third parties. You also authorize us to debit (or credit, if applicable) your Affiliated Account to pay for transactions done using the Service. You confirm that you properly identified the financial institution that holds your Affiliated Account; that your Affiliated Account is your bank account and you are an authorized signer on it; that the account number and routing number of your Affiliated Account are correct; and that you are authorized to enroll your Affiliated Account for the Service, and your agreement to do so also constitutes the agreement by any authorized signers on your Affiliated Account.
6. Additional DirectPay Disclosures
6.1 Terms, Benefits and Protections of the Service May be Different from a Debit Card
Your Card and PIN were and are issued by Albertsons. They were not issued by the financial institution that maintains your Affiliated Account. The terms, benefits and protections associated with the Service may vary from those that apply to a debit card issued by the financial institution that maintains your Affiliated Account. For example, if you use the Service to make a purchase that exceeds the balance of your Affiliated Account, your Affiliated Account may become overdrawn even if you chose not to allow overdrafts with respect to a debit card issued by the financial institution that maintains your Affiliated Account, and you may incur associated overdraft fees. Similarly, the liability limits applicable to your DirectPay Transactions may be different from those applicable to a debit card issued by the financial institution that maintains your Affiliated Account.
6.2 Record of Your Transactions
You can get a receipt at the time you make any purchase or Cash-Back transaction using the Service. This receipt will contain our telephone number to be used for inquiries, error notices, and PIN changes and for reporting loss, theft or unauthorized use of your Card, Cardless Payment Number or PIN. We will NOT send you a periodic statement listing transactions that you make using the Service. The transactions will appear only on the statement issued by the financial institution that holds your Affiliated Account. SAVE THE RECEIPTS YOU ARE GIVEN WHEN YOU USE THE SERVICE AND CHECK THEM AGAINST THE ACCOUNT STATEMENT YOU RECEIVE FROM YOUR BANK OR OTHER FINANCIAL INSTITUTION THAT HOLDS YOUR AFFILIATED ACCOUNT. ALL QUESTIONS ABOUT TRANSACTIONS MADE WITH THE SERVICE MUST BE DIRECTED TO ALBERTSONS. Albertsons is responsible for resolving any errors in transactions made with the Service. If you have any questions about one of these transactions, call us immediately at 866-392-9517, email us at directpay@albertsons.com, or write us at Payment Services, P.O. Box 29241, Phoenix, AZ 85038-9241.
IF YOUR CARD, IS LOST OR STOLEN, OR YOU EXPERIENCE UNAUTHORIZED USE OF YOUR PIN AND/OR CARDLESS PAYMENT NUMBER, NOTIFY US AT ONCE by calling 866-392-9517, emailing us at directpay@albertsons.com or writing to us at Payment Services, P.O. Box 29241, Phoenix, AZ 85038-9241.
6.3 Business Days
For purposes of this Agreement, our business days are Monday through Friday, 7:00 AM to 7:00 PM, excluding federal holidays.
6.4 Card, PIN, Password, Cardless Payment Number, and Mobile Device Security
It is your responsibility to maintain the confidentiality of the Service. You should keep your Card, PIN, Password, Cardless Payment Number, and mobile device in a safe place and permit no unauthorized person to use them. For security reasons, you should never write your PIN, Password, or your Cardless Payment Number on your Card or keep your PIN, Password, or your Cardless Payment Number in the same location as your Card or mobile device, and never tell any unauthorized person your PIN, Password, or your Cardless Payment Number. Do not display any cash you receive in a Cash-Back transaction. Except as set forth herein, Albertsons is not responsible for any loss you may incur as a result of any unauthorized person using the Service. While your PIN and Cardless Payment Number may be required to complete certain on-line or smartphone transactions from our website, we will never send you a request for your PIN or Cardless Payment Number.
6.5 Our Liability for Failing to Make a Transfer
Federal law provides that, if we do not complete a Payment Order to or from your Affiliated Account in the correct amount according to this Agreement, we will be liable for your losses or damages. There are, however, some exceptions. We will not be liable, for instance, if: (a) through no fault of ours you do not have enough available funds in your Affiliated Account (or available credit in your overdraft protection account, if applicable) to make the transfer; (b) circumstances beyond our control (such as fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, telephone line disruption or natural disaster) prevent or delay the transfer despite reasonable precautions taken by us; (c) the system used to process your payment was not working properly and you knew about the problem when you started the transaction; (d) we have reason to believe the transaction may not be authorized (e.g., if your Card, PIN, Password, Cardless Payment Number, or mobile device is reported lost, or stolen); (e) the information supplied by you or a third party is incorrect, incomplete, ambiguous or untimely; or (f) a transaction cannot be completed because your Card is damaged, your PIN or Cardless Payment Number is incorrect.
6.6 Your Liability for Unauthorized Transactions
Tell us AT ONCE if you believe your Card, PIN, Password, Cardless Payment Number, or mobile device has been lost or stolen. Telephoning is the best way to notify us and to minimize potential losses. If you fail to contact us, you could lose all the money in your Affiliated Account, plus your maximum overdraft line of credit. If you tell us within four business days, you can lose no more than $50.00 if someone used your Card or did a Cardless Transaction without your permission.
If you do not tell us within four business days after you learn of the misuse, loss or theft of your Card, PIN, Password, Cardless Payment Number, or mobile device and we can prove we could have stopped someone from using the Service without your permission if you had told us, you could lose as much as $500.00.
If your Affiliated Account statement shows transactions or transfers you did not make with your Card, PIN or Cardless Payment Number, also tell us at once. If you do not tell us within 90 days after the financial institution that holds your Affiliated Account mails your statement to you, you may not get back any money you lost after such 90 days if we can prove we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, or the delay in notifying us was due to the fact that you initially notified the financial institution holding your Affiliated Account, then we will extend the time period by a reasonable period of time.
If you furnish your Card, PIN, Password, Cardless Payment Number, or mobile device and grant authority to make a transfer to someone who exceeds the authority given, you will be fully liable for the transfers made by that person until you notify us and the financial institution that holds your Affiliated Account that such person is no longer authorized to make transfers. Under such circumstances, you may be required to change your Cardless Payment Number and/or PIN.
6.7 Misused, Lost or Stolen Card, PIN, Password, Cardless Payment Number, or Mobile Device
IF YOU BELIEVE YOUR CARD, PIN, PASSWORD, CARDLESS PAYMENT NUMBER, OR MOBILE DEVICE IS LOST OR HAS BEEN STOLEN OR THERE HAS BEEN UNAUTHORIZED USE OF THE SERVICE, OR THAT SOMEONE HAS MADE OR MAY MAKE A PURCHASE TRANSACTION (WITH OR WITHOUT CASH-BACK) FROM YOUR AFFILIATED ACCOUNT BY USING YOUR CARD, PIN, PASSWORD, CARDLESS PAYMENT NUMBER, OR MOBILE DEVICE WITHOUT YOUR PERMISSION OR IF FOR ANY OTHER REASON YOU WOULD LIKE TO CHANGE YOUR CARDLESS PAYMENT NUMBER OR PIN, NOTIFY US AT ONCE AT 866-392-9517, EMAIL US AT directpay@albertsons.com, OR WRITE US AT PAYMENT SERVICES, P.O. BOX 29241, PHOENIX, AZ 85038-9241.
6.8 How to Report Unauthorized Transactions and Resolve Errors or Questions
ALL QUESTIONS ABOUT DIRECTPAY TRANSACTIONS MUST BE DIRECTED TO ALBERTSONS. Albertsons is responsible for the Service and for resolving any errors in Card transactions, or Cardless transactions.
In the case of errors or questions about transactions involving the Service, or if you would like to change your PIN, or if you need more information about a DirectPay transaction listed on your receipt or the statement you receive from the financial institution that holds your Affiliated Account or if you think your receipt or Affiliated Account statement is wrong regarding a transaction involving the Service, then call us at 866-392-9517, email us at directpay@albertsons.com, or write to us at Payment Services, P.O. Box 29241, Phoenix, AZ 85038-9241, as soon as you can. We must hear from you no later than 90 days after the date of the FIRST Affiliated Account statement on which the problem or error appeared.
When you contact us, please: (A) tell us your name, Affiliated Account number, Card number, Cardless Payment Number, telephone number; (B) describe the error or the transfer you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information; and (C) tell us the dollar amount of the suspected error. If you tell us orally, we may require you to send us your complaint or question in writing within ten days.
We will inform you of the results of our investigation within ten business days after your notification, and we will correct any error promptly. If we need more time, however, we may take up to 90 days to investigate your complaint or question. If we decide to do this, we will credit your Affiliated Account or issue you a provisional refund within ten business days for the amount you think is in error so that you will have use of the money while we complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten business days, we may not provisionally credit your Affiliated Account.
We will tell you the results of our investigation within three business days after we complete it. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation. SECTIONS 6.4, 6.5 AND 6.7 OF THIS AGREEMENT APPLY ONLY IF YOU ARE A NATURAL PERSON AND YOUR AFFILIATED ACCOUNT WAS ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES
6.9 Fees
Although Albertsons does not currently assess a fee for using the Service, there may be other fees for each transaction performed using the Service, including, without limitation, fees imposed by transaction processing services and card network providers and fees for unpaid returned transactions. In addition, the financial institution that holds your Affiliated Account and any company or institution that owns or operates the point-of-sale machine may assess additional fees and surcharges.
6.10 Change of Terms
We may modify or delete any of the terms of this Agreement, provide you with other communications, and add additional terms at any time by electronic notice or, if required by law, by mailing a notice to you at your address shown in our records at least 21 days before the changes are to become effective, except that changes may be made without prior notice if they are necessary to maintain or restore the security of your Affiliated Account, Albertsons's systems, or its agents' systems. We will notify you within 30 days if such change is made permanent, unless we determine such change must remain confidential to maintain the security of the systems, including an electronic fund transfer system, and/or your Affiliated Account. If you continue to participate in the Service by using your Card, Cardless Payment Number, mobile device or in any other way after this Agreement has been changed, you will be deemed to have read, understood and unconditionally consented to and agreed to such changes.
6.11 Termination and Suspension
Your Card, PIN, Password, the App, and Cardless Payment Number are the property of Albertsons. We may, at any time, for any reason, and in our sole discretion, suspend or terminate (a) your right to use the Service, in connection with your DirectPay account, and (b) your ability to engage in DirectPay transactions. You may terminate your use of the Service by giving us written notice at Payment Services, P.O. Box 29241, Phoenix, AZ 85038-9241, emailing us at directpay@albertsons.com, or by calling us at 866-392-9517. You may also remove a bank account from the DirectPay service by following the instructions in the mobile app. Your obligation to pay all overdrafts and other amounts you may owe us shall not be released or otherwise affected by termination or suspension of your right to use the Service, your Card, Cardless Payment Number or PIN, mobile device app or your ability to perform DirectPay transactions. Our obligation under this Agreement to process your Card, Cardless Payment Number, PIN, App, or DirectPay transactions ends when your right to use the Service is terminated or suspended. You agree not to use the Service after your right to use the Service has been terminated or suspended for any reason, and you agree to return your Card (cut in half), if any, to us immediately if your Card or your right to use the Service is terminated.
6.12 Collection Costs
You agree to pay all reasonable expenses we or a third-party service provider may incur in collecting any amount owed by you to us or a third-party service provider under this Agreement, retrieving your Card, and/or enforcing our rights under this Agreement (whether or not a lawsuit is filed).
6.13 Change of Name, Address or Other Information
You agree to notify us in writing at Payment Services, P.O. Box 29241, Phoenix, Arizona, 85038-9241, emailing us at directpay@albertsons.com or by phone at 866-392-9517 if you change your name, address or other information you provided during enrollment for the Service. You agree to give us any updated information we may request from time to time. You authorize us to confirm and to check from time to time the information you provide to us or we obtain about you, including, but not limited to, by contacting the financial institution that holds your Affiliated Account, obtaining consumer reports about you from a consumer reporting agency, and contacting other third parties.
6.14 Binding Arbitration
By using the Service in any way, you unconditionally consent and agree that: (a) any claim, dispute, or controversy (whether in contract, tort, or otherwise) you may have against Albertsons, its parent, subsidiaries, and affiliates, and its and their respective officers, directors and employees (all such entities and individuals collectively referred to herein as the “Company Entities”), or their third party service providers, arising out of, relating to, or connected in any way with the Service or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator in accordance with the rules of AAA; (b) this arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (c) the arbitration shall be held in Arizona; (d) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and any of the other agreements referenced herein that the applicable user may have entered into in connection with DirectPay service; (e) the arbitrator shall apply Arizona law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law; (f) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Albertson’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (g) the arbitrator shall have no power to award punitive damages against you or any Company Entity; (h) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Company Entity exceed $125 USD and you are unable (or not required under the rules of AAA) to pay any fees and deposits that exceed this amount, Albertsons agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator; in addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Albertsons will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and with the exception of subpart (f) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (f) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor the Company Entities shall be entitled to arbitrate your or their dispute. For more information on AAA and/or the rules of AAA, visit its website at www.adr.org. Except as otherwise provided in this arbitration provision, all fees and expenses of such arbitration proceedings, including both those of the arbitrator(s) and reasonable attorneys’ fees and costs for the respective parties to such arbitration, shall be paid by the party against whom the decision or award is rendered as determined by the arbitrator(s).
6.15 Service Malfunctions: Acts of God, and Conduct
Albertsons, its affiliates and related companies, and their respective officers, directors, employees, agents and contractors (all such entities and individuals collectively referred to herein as the “Released Parties”) are not responsible for lost, interrupted, inaccessible or unavailable networks, servers, satellites, Internet Service Providers, websites, or other connections; or for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone or cable transmissions; or for any technical malfunctions, failures, difficulties, or other errors of any kind or nature; or for the incorrect or inaccurate capture of information; or the failure to capture any information. If, for any reason, the Service is not capable of operating as anticipated, including due to infection by computer virus, bugs, malicious code, tampering, unauthorized intervention, fraud, technical failures, or any other causes beyond the control of Albertsons that corrupt or affect the administration, security, fairness, integrity or proper conduct of the Service, Albertsons reserves the right in its sole discretion to cancel, terminate, modify, or suspend the Service or otherwise respond to the circumstances as Albertsons deems appropriate. In the event Albertsons is prevented from continuing to provide the Service as contemplated herein by any event beyond its control, including, but not limited to, fire, flood, natural or man-made epidemic of health or other means, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared) or any federal state or local government law, order, or regulation, public health crisis, order of any court or jurisdiction, or other cause not reasonably within Albertsons’s control, Albertsons shall have the right to modify, suspend, or terminate the Service.
Albertsons and its service providers, in their sole discretion, reserve the right to disqualify and terminate your participation in the Service if you (i) tamper with the operation of the Service; (ii) act in violation of, or violate the terms of, this Agreement; (iii) act in an illegal, unlawful, unethical or disruptive manner; or (iv) act with intent to annoy, abuse, threaten or harass Albertsons, its representatives or any other user of the Service in any manner related to the Service.
7. Miscellaneous Provisions
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OR GUARANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT. ALBERTSONS MAKES NO WARRANTY THAT SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. ALBERTSONS MAKES NO WARRANTY IN ANY RESPECT AS TO ANY SERVICES MADE AVAILABLE AS PART OF THE SERVICE. BY PARTICIPATING IN THE SERVICE, YOU ACCEPT ALL RESPONSIBILITY FOR, AND HEREBY RELEASE, INDEMNIFY AND HOLD HARMLESS THE RELEASED PARTIES FROM AND AGAINST ANY CLAIMS THAT MAY ARISE FROM ACTIONS TAKEN BY YOU.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE OR YOUR PARTICIPATION THEREIN. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, ALBERTSONS’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
BY PARTICIPATING IN THE SERVICE, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ALBERTSONS, ITS AFFILIATES AND RELATED COMPANIES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,CONTRACTORS AND THIRD-PARTY SERVICE PROVIDERS FROM ALL LIABILITIES, THIRD-PARTY CLAIMS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) THAT ARISE OUT OF OR ARE RELATED, IN WHOLE OR IN PART, TO YOUR VIOLATION OR ALLEGED VIOLATION OF THIS AGREEMENT OR APPLICABLE LAW.
Notwithstanding any other provision of this Agreement, in the event there is a direct conflict between this Agreement and any other privacy policy, this Agreement will govern, control and prevail with respect to the Service. This Agreement: (a) does not create any relationship of principal and agent, employer-employee, joint venture, partnership or any association between the parties except as described herein; (b) is for the sole and exclusive benefit of you and Albertsons, and nothing contained in this Agreement, whether express or implied, is intended to confer any right, remedy or benefit upon any person or entity other than the parties; (c) does not relieve or discharge liability of any third person or entity and does not give any third party any right to subrogation or other action over or against either of the parties, provided that liabilities accruing under this Agreement may be assigned by Albertsons to one or more third parties subject to such rights and remedies as are available hereunder; and (d) will be governed by and construed under the laws of the State of Arizona. Except as expressly provided in Section 6.4, the unenforceability of any provision of this Agreement will not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement. A waiver or indulgence of any breach of any term, condition, covenant or warranty contained in this Agreement shall not be deemed or construed to be a waiver of any other provisions, nor shall it affect the validity of the remainder of this Agreement or constitute a waiver of any preceding or succeeding breach of the same or any other provision hereof. No waiver shall be effective unless set forth in writing and signed by the party bound thereby.
8. Returned Electronic Funds Transfer Fee Schedule
Albertsons will impose, and may electronically present to your bank, the Electronic Funds Transfer Fee set forth below, or the maximum amount allowed by applicable state laws on any DirectPay transaction that is returned or refused. These fees are subject to change: AL $30; AK $30; AZ $25; AR $30; CA $25; CO $20; CT $20; DE $40; DC $25; FL $25 for amounts up to and including $50, $30 for amounts $50.01 - $300.00, greater of $40 or 5% for amounts over $300; GA greater of $30 or 5%; HI $30; ID $20; IL $25; IN $20; IA $30; KS $30; KY $50; LA greater of $25 or 5%; ME $25; MD $35; MA $25; MI $25 until 15 days following notice, increases to $35; MN $30; MS $40; MO $25; MT $30; NE $35; NV $25; NH $25; NJ $30; NM $30; NY $20; NC $25: ND $40; OH greater of $30 or 10%; OK $25; OR $35; PA $30; RI $25; SC $30; SD $40; TN $30; TX $30 + sales tax; UT $20; VT $25; VA $50; WA $30; WV $25; WI $25; WY $30.
9. Electronic Payment Authorization
FOR INTERNET ENROLLMENT AUTHORIZATION: IF YOU ARE ENROLLING TO PARTICIPATE IN DIRECTPAY VIA THE INTERNET USING A COMPUTER, ELECTRONIC TABLET OR OTHER MOBILE DEVICE, THEN BY SELECTING THE "I AGREE" BUTTON OR SIMILAR BUTTONS, YOU AGREE THAT (1) YOU ARE ENROLLING VIA THE INTERNET AND YOUR SYSTEM MEETS THE MINIMUM REQUIREMENTS SET FORTH ABOVE; (2) YOU HAVE THE ABILITY TO ACCESS A DIRECTPAY ENROLLMENT WEBSITE, READ AND PRINT ANY COMMUNICATIONS THAT WE ELECTRONICALLY PROVIDE OR MAKE AVAILABLE TO YOU AT A DIRECTPAY ENROLLMENT WEBSITE OR OTHER ELECTRONIC MEANS AGREED UPON BY YOU AND US; (3) YOU HAVE READ, UNDERSTAND AND ARE AFFIRMATIVELY AND UNCONDITIONALLY AGREEING TO THIS AGREEMENT; (4) YOU CONSENT TO YOUR AFFILIATED ACCOUNT BEING DEBITED AND CREDITED, IF NECESSARY, AS SET FORTH ABOVE; (5) YOU CONSENT TO RECEIVING COMMUNICATIONS FROM US IN ELECTRONIC FORM, INCLUDING THIS AGREEMENT AND YOU UNDERSTAND YOU WILL NOT BE PROVIDED WITH A PAPER AGREEMENT TO BE SIGNED IN WRITING; (6) TO THE EXTENT ALLOWED BY LAW, YOU CONSENT TO USING AN ELECTRONIC SIGNATURE ON THIS AGREEMENT INCLUDING YOUR PAYMENT AUTHORIZATION; (7) YOUR CONSENT SHALL ALSO CONSTITUTE CONSENT BY ANY AUTHORIZED SIGNERS ON YOUR AFFILIATED ACCOUNT; AND (8) YOUR CONSENT REASONABLY DEMONSTRATES THAT YOU CAN ACCESS INFORMATION IN AN ELECTRONIC FORM, YOU HAVE THE ABILITY TO USE AN ELECTRONIC SIGNATURE, AND ANY ELECTRONIC SIGNATURE THAT YOU PROVIDE ON THIS AGREEMENT OR OTHER LEGALLY REQUIRED DOCUMENTS IS VALID AND BINDING. IN ADDITION, BY SELECTING THE “I AGREE” OPTION, YOU AUTHORIZE ALBERTSONS COMPANIES, INC., ITS AFFILIATES, SUBSIDIARIES AND THIRD-PARTY SERVICE PROVIDERS TO INITIATE DEBIT AND, IF APPLICABLE, CREDIT ENTRIES TO YOUR AFFILIATED ACCOUNT FOR THE PURPOSE OF PRESENTING YOUR PAYMENT TRANSACTIONS TO SUCH ACCOUNT FOR PAYMENT. YOU ACKNOWLEDGE YOU ARE AUTHORIZING YOUR PAYMENTS IN THE AMOUNTS INDICATED TO BE PROCESSED AS ELECTRONIC FUNDS TRANSFERS (EFTs) VIA THE AUTOMATED CLEARING HOUSE (“ACH”) DRAWN FROM YOUR AFFILIATED ACCOUNT BY ALBERTSONS COMPANIES, INC., ITS AFFILIATES, SUBSIDIARIES OR THIRD-PARTY SERVICE PROVIDERS AND, IF NECESSARY, ELECTRONIC CREDITS TO YOUR AFFILIATED ACCOUNTS TO CORRECT ERRONEOUS DEBITS. YOU UNDERSTAND THAT YOUR PAYMENTS WILL BE PROCESSED WITHIN 1-2 BANKING DAYS. IF AN AUTHORIZED PAYMENT RETURNS UNPAID OR REFUSED, YOU UNDERSTAND AND AUTHORIZE ALBERTSONS COMPANIES, INC., ITS AFFILIATES, SUBSIDIARIES OR THIRD-PARTY SERVICE PROVIDERS TO COLLECT THE RETURNED ACH PAYMENT AND THE APPLICABLE STATE’S APPLICABLE FEE (AS SET FORTH IN SECTION 8, ABOVE) AND OTHER COSTS FOR EACH SUCH PAYMENT BY EFT(S) OR DRAFT(S) DRAWN FROM YOUR AFFILIATED ACCOUNT BY PRESENTATION TO THE FINANCIAL INSTITUTION THAT HOLDS YOUR AFFILIATED ACCOUNT. YOU ACKNOWLEDGE AND AGREE THESE FEES ARE SUBJECT TO CHANGE. YOU ACKNOWLEDGE AND AGREE THAT THIS AUTHORIZATION WILL REMAIN IN FULL FORCE AND EFFECT UNTIL YOU NOTIFY ALBERTSONS COMPANIES, INC. THAT YOU WISH TO REVOKE IT BY CALLING ALBERTSONS COMPANIES, INC. AT (866) 392-9517 AND ALLOWING ALBERTSONS COMPANIES, INC. REASONABLE OPPORTUNITY TO ACT ON YOUR NOTICE. YOU ACKNOWLEDGE THIS IS THE ONLY METHOD BY WHICH YOU MAY REVOKE THIS AUTHORIZATION. YOU ACKNOWLEDGE THAT THE ORIGINATION OF EFTS TO YOUR ACCOUNT MUST COMPLY WITH THE PROVISIONS OF UNITED STATES LAW. YOU FURTHER ACKNOWLEDGE THAT YOUR CONSENT SHALL ALSO CONSTITUTE CONSENT OF AUTHORIZED SIGNERS ON THE AFFILIATE ACCOUNT TO THIS SAME AUTHORIZATION, AND YOUR AGREEMENT TODAY IS VALID AND BINDING.