Last modified: [May 11th 2023]
Welcome to the Pen to Paper Co. d/b/a Fondue (“Fondue”, “we”, “us”, or “our”) and thank you for visiting. We hope you enjoy the experience
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND FONDUE THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION  “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION  WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION  (GOVERNING LAW) WILL APPLY INSTEAD.
- Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, you are not authorized to use the Services.
- Changes to these Terms or the Services. We may update these Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site and/or may also send other communications. It’s important that you review these Terms whenever we update them, or you use the Services. If you continue to use the Services after we have posted updated Terms, it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
- Who May Use the Services?
- Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Fondue, and not otherwise barred from using the Services under applicable law.
- Compliance. The Services are only available to users in certain jurisdictions who can use the Services as permitted under applicable law. You certify that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Services. Without limiting the foregoing, by using the Services, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo; and (ii) you are not listed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Services outside the United States, you are solely responsible for ensuring that your access and use of the Services in such country, territory or jurisdiction does not violate any applicable laws. You must not use any software or networking techniques, including use of a Virtual Private Network (VPN) to modify your internet protocol address or otherwise circumvent or attempt to circumvent this prohibition. We reserve the right, but have no obligation, to monitor where our Services are accessed from. Furthermore, we reserve the right, at any time, in our sole discretion, to block access to the Services, in whole or in part, from any geographic location, IP addresses and unique device identifiers or to any user who we believe is in breach of these Terms.
- About the Services. Our Services enable you to receive a promotional benefit from making purchases from select third party merchants (“Merchants”). Such benefits include merchant gift cards or cashback rewards. You are eligible to receive a cashback reward directly to a linked bank account or by receive a virtual card under our cashback program (“Cashback Program”). The Cashback Program is subject to the [https://www.getfondue.com/cb-terms].
- Merchant Store Credit. If the option is available, you may choose to receive a gift card at the Merchant where you made a purchase (“Merchant Store Credit”). You may only redeem the Merchant Store Credit for use with the Merchant that issued such reward. Merchant Store Credit is issued in partnership with Shopify. Merchant Store Credit is not transferrable, and may not be redeemed for cash, except where required by law. Resale of Merchant Store Credit is strictly prohibited.
- Cashback Program. You may in accordance with the Cashback Program receive a Visa® branded virtual card (“Card”). The Card is issued by the Bank and remains the property of the Bank and must be surrendered to the Bank upon demand. The Card is limited to the funds available in your account. The Card will have an expiration date and the Card will expire, in accordance with applicable law, on the expiration date. If your Card and account are in good standing, we may, at our sole discretion, issue you a new Card upon expiration. You must surrender a revoked Card upon request, and you may not use an expired or revoked Card. Fondue may refuse to process any transaction that Fondue believes may violate these Terms. You may use your Card to make purchases at any merchant that accepts Visa® cards, subject to the funds available in your Fondue account, and the other terms and conditions of these Terms and of your Cardholder Agreement.
CASH BACK IS EARNED ON YOUR NET PURCHASE AMOUNT, WHICH EXCLUDES TAXES, FEES, SHIPPING, GIFT-WRAPPING, DISCOUNTS OR CREDITS, RETURNS OR CANCELLATIONS, AND EXTENDED WARRANTIES. WITH THE EXCEPTION OF PURCHASES OF GIFT CARDS THROUGH THE GIFT CARD SHOP WHICH QUALITY FOR CASH BACK, PURCHASES WITH GIFT CARDS MAY NOT QUALIFY FOR CASH BACK IF EXCLUDED IN THE TERMS OF OFFER BY AN AFFILIATE STORE. CASH BACK AMOUNTS VARY BY AFFILIATE STORE AND PRODUCT CATEGORY AND MAY CONTAIN EXCLUSIONS IN THE TERMS OF THE OFFER AND THE APPLICABLE MERCHANT PAGE. PLEASE REVIEW THESE TERMS CAREFULLY.
- General. The Merchant is solely responsible for designating the form of benefit available to you related to your transaction. If you fail to select from one of the alternatives, you will receive your refund via the default Alternative designated by the merchant related to your transaction. If you have any questions, comments or concerns regarding the default Alternative designated or the alternatives made available related to your transaction, please direct those questions, comments or concerns to the applicable merchant. YOU ACKNOWLEDGE AND AGREE THAT WE WILL HAVE NO LIABILITY OR OBLIGATION TO YOU RELATED TO THE ALTERNATIVES MADE AVAILABLE AND/OR THE DEFAULT ALTERNATIVE METHOD DESIGNATED BY THE MERCHANT RELATED TO YOUR PROMOTIONAL BENEFIT.
- Third-Party Services; Links to Third Party Websites or Resources.
- Third-Party Services. The Services may enable you to access services provided by third-parties (including Merchants, third party payment processors, and other providers). You are solely responsible for reviewing, and agreeing and complying with, the terms, conditions and policies applicable to all such third-party services, platforms or marketplaces.
- Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
- Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
- Acceptable Use Policy and Fondue’s Enforcement Rights. You agree not to do any of the following:
- Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Fondue’s name, any Fondue trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Fondue’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Fondue’s computer systems, or the technical delivery systems of Fondue’s providers;
- Attempt to probe, scan or test the vulnerability of any Fondue system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Fondue or any of Fondue’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Fondue or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Engage in transactions related to or in furtherance of any of the following activities:
- The sale or purchase of illegal goods, including but not limited to stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety;
- Marijuana-related businesses (including but not limited to manufacturers, dispensaries, and those engaged in the business of marketing, buying, growing, selling, or otherwise promoting medical or recreational marijuana);
- Illegal services, including but not limited to counterfeit services, illegal gambling, Ponzi or pyramid schemes, and money laundering;
- Adult entertainment, including but not limited to escort services, encounter clubs, and pornographic products and services;
- Debt collection, relief, or counseling;
- Gun sellers and firearm or ammunition sales;
- Unlicensed or unregistered Money Services Businesses, as that term is defined at 31 C.F.R. 1010.100(ff) and under corresponding state regulations;
- White label ATM services; and
- Promotion of hate, violence, harassment, or abuse; or
- Use the Services for any fraudulent or unlawful purpose, including to defraud Fondue, our third party service providers, or other users of the Services in any way.
- Compliance with Applicable Law and Third Party Payment Processor and/or Bank Partner Rules. You agree, in accessing and using the Services (including, without limitation, the Card), to comply with: (a) all applicable laws, statutes, ordinances, rules, regulations, standards, guidance, or opinions enacted, issued, promulgated, enforced or entered by any federal, state, local or other governmental to anti-bribery or anti-corruption; and (b) any written policies, guidelines, or directives that we and/or the Bank may provide to you.
- Warranty Disclaimers
THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE CARD) ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND THEIR RESPECTIVE MANAGING MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE “COMPANY PARTIES”) EXPLICITLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION: (A) AS TO TITLE, MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) THE QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, OR RELIABILITY OF THE SERVICES AND THE CONTENT THEREIN; (C) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (D) THE SITE AND APPLICATION AND THEIR RESPECTIVE CONTENT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY COMPANY PARTY; AND (E) THAT ACCESS TO OR USE OF THE SERVICE OR THE CONTENT THEREIN WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
Your reliance upon the information available through the Services and your interactions with third party users identified through the Services is SOLELY AT YOUR OWN RISK. Your interactions with other users or advertisers, including any payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other person or entity, and you agree that we will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other person’s or entity’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party, we are under no obligation to become involved, and you agree that you will manage any such dispute or disagreement directly, and that you will not make any claims against us with respect to products or services purchased through your use of the Services (including, without limitation, the Card).
The Services (including, without limitation, the Card) may be subject to limitations, delays, and other problems inherent in the use of the Internet, mobile devices and electronic communications. We are not responsible for any delays, delivery failures or other damages resulting from such problems.
- Indemnification. You will indemnify and hold Fondue and its officers, directors, employees, and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with: (a) your access to or use of the Services; (b) your User Content; or (c) your violation of these Terms or of any applicable laws, rules, or regulations.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FONDUE OR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE CARDS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, FOR LOSS OF USE, DATA, GOODWILL, REVENUES, SAVINGS, BUSINESS OPPORTUNITY, OR PROFITS, OR FOR SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMTIATION, THE CARD), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF FONDUE OR ITS SERVICE PROVIDERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL FONDUE’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE CARD) EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO FONDUE FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FONDUE, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FONDUE AND YOU.
- Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 (“Dispute Resolution”), the exclusive jurisdiction for all Disputes (defined below) that you and Fondue are not required to arbitrate will be the state and federal courts located in California and you and Fondue each waive any objection to jurisdiction and venue in such courts.
- Dispute Resolution
- Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Fondue agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Fondue are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- Exceptions. As limited exceptions to Section [a] above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
- Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
- Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Injunctive and Declaratory Relief. Except as provided in Section 23(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
- Class Action Waiver. YOU AND FONDUE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
- Severability. With the exception of any of the provisions in Section [g] of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
- General Terms.
- Reservation of Rights. Fondue and its licensors exclusively own all right, title, and interest in and to the Services, including all content, including, but not limited to, the text, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork, algorithms, functionalities, features and computer code, including but not limited to design, structure, “look and feel” and arrangement of the content available through the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
- Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Fondue and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Fondue and you regarding the Services.
- Severability. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- No Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Fondue’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Fondue may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Notices. Any notices or other communications provided by Fondue under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
- No Joint Venture. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Fondue as a result of these Terms or accessing or using the Services or its contents.
- Waiver of Rights. Fondue’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fondue. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
- Notice for California Users. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
- Contact Information
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at email@example.com