These Terms and Conditions (“Terms”) set forth the terms pursuant to which Pomelo International, Inc. (“Pomelo”), a Delaware corporation with registered offices at 720 York St, Ste 116, San Francisco, CA 94110, will offer the Promotion (as defined below) to certain users of Pomelo’s cards and related services (“Services”). These Terms are in addition to any other agreement entered into between you and Pomelo (or Coastal Community Bank, member FDIC, or MasterCard) for use of the Services. If there is a conflict between these Terms and any other agreement entered into between you and Pomelo (or Coastal Community Bank, member FDIC, or Mastercard) for the Services, these Terms will govern with respect to the Promotion.
The Promotion begins at 12:00 am Pacific Standard Time (“PST”) on August 16, 2022 and ends when terminated by Pomelo (“Promotion Period”) in its sole discretion. Pomelo may suspend, modify, or terminate the Promotion at any time in its sole discretion; if it does suspend, modify or terminate the Promotion, Pomelo will let you know by posting a notice on the Services and/or other forms of communication.
In order to be eligible to participate in the Promotion, you must:
If you meet all of the conditions above, you are a “Participant.”
For the avoidance of doubt, the Promotion does not apply to Pomelo cards issued before the Promotion Period.
During the Promotion Period, Pomelo will offer the following promotional conversion rate (“Promotional Rate”) for Eligible Transactions (as defined below): 60 Philippine Pesos to $1 US dollar (the “Promotion”).
“Eligible Transactions” must be all of the following:
Each Eligible Transaction will appear on Participant’s card statement based on the prevailing Mastercard conversion rates, and Pomelo will apply a credit to the card statement in the US dollar amount required to bring the effective conversion rate for the Eligible Transaction rate to the Promotional Rate. No credit will be applied if the prevailing Mastercard conversion rate is lower than the Promotional Rate.
If Pomelo modifies the Promotional Rate at any time during the Promotion Period pursuant to the section entitled “Promotion Period” above, Pomelo will honor the Promotional Rate set forth herein for Eligible Transactions made up until the modification date.
POMELO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PROMOTION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER POMELO NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PROMOTION WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE PARTICIPATION IN OR INABILITY TO PARTICIPATE IN THE PROMOTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR POMELO OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BY ENTERING THE PROMOTION, EACH PARTICIPANT AGREES TO RELEASE AND HOLD HARMLESS POMELO AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) FROM AND AGAINST ANY CLAIM OR CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, OR DAMAGE TOOR LOSS OF PROPERTY, ARISING OUT OF PARTICIPATION IN THE PROMOTION. THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR: (1) ANY INCORRECT OR INACCURATE INFORMATION, WHETHER CAUSED BY PARTICIPANTS, PRINTING ERRORS, OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE PROMOTION; (2) TECHNICAL FAILURES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO MALFUNCTIONS, INTERRUPTIONS, OR DISCONNECTIONS IN PHONE LINES OR NETWORK HARDWARE OR SOFTWARE; (3) UNAUTHORIZED HUMAN INTERVENTION IN ANY PART OF THE PROMOTION; (4) TECHNICAL OR HUMAN ERROR THAT MAY OCCUR IN THE ADMINISTRATION OF THE PROMOTION; OR (5) ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY THAT MAY BE CAUSED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM A PARTICIPANT’S PARTICIPATION IN THE PROMOTION.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL POMELO’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE PARTICIPATION IN OR INABILITY TO PARTICIPATE IN THE PROMOTION, EXCEED ONE HUNDRED U.S. DOLLARS ($100).
These Terms, and any action related thereto, will be governed by the U.S. 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 the “Dispute Resolution” section below, the exclusive jurisdiction for all Disputes (defined below) will be the state and federal courts located in San Francisco, California, and you and Pomelo each waive any objection to jurisdiction and venue in such courts.
(a) . 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 participation in the Promotion (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. You and Pomelo agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Pomelo 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.
(b) . As limited exceptions to item (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.
(c) . 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, with provision to be made for remote appearances to the maximum extent permitted by the AAA Rules, 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.
(d) . Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we will not seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute is frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and will not 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.
(e) . Except as provided in item (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.
(f) . YOU AND POMELO 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 a 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.
(g) . With the exception of any of the provisions in item (f) above (“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.
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. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Pomelo’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null and void in its entirety. Pomelo 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 any permitted assigns. Pomelo’s 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 Pomelo. 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.
If you have any questions about these Terms or the Promotion, please contact Pomelo at firstname.lastname@example.org.