General Terms & Conditions of the B2B Offer of Blackhawk Network Switzerland AG
The following General Terms & Conditions apply to all orders or other contracts concluded for the purchase of Gift Cards and other services by Blackhawk Network Switzerland AG, Florastrasse 13, 8800 Thalwil, Switzerland (hereinafter “Blackhawk”, “we” or “us”) for commercial purposes, whether online or offline. The following General Terms & Conditions do not apply to contracts with consumers within the meaning of § 8 of the UWG (Swiss Unfair Competition Act). Parties placing orders or other contractual partners are referred to below as “Customer” or “you”. Divergent general terms and conditions of the Customer and other agreements shall only apply if Blackhawk has expressly agreed to them in writing through authorized representatives. The performance of the services is not to be considered an approval thereof.
The terms shown in italics in these General Terms & Conditions have the following meanings:
Gift Card means a prepaid card or other electronic or digital payment mechanism which, upon activation, may be used to pay for goods and/or services at a merchant and/or vendor;
Card Conditions means the terms and conditions of a Card Issuer applicable to the use of the Gift Cards issued by the card issuer;
Card Issuer means a legal entity that issues or offers one or more Gift Cards, either themselves or through a related company;
Related Companies are legally independent companies which in their relation to each other are either majority-owned, dependent and controlling companies, or parties to a corporate agreement whereby one company subordinates its management to the other company or undertakes to transfer all its profits to the other company;
Brand means any word/figurative trademark, word trademark, figurative trademark, color trademark, sound trademark, smell trademark, position trademark, hologram trademark, motion trade mark, slogan, trade name, logo and service trademark, regardless of whether registered or not;
Program means an incentive program operated in Switzerland by the Customer, including employee incentives, customer incentives, sales channel incentives and customer acquisition and recovery, under which the Customer delivers the Gift Cards ordered from Blackhawk to their own customers and/or employees or instructs Blackhawk to deliver the Gift Cards directly to them;
Participant means a natural person receiving a Gift Card under the Customer’s program;
Entrepreneur is any natural or legal person or a legal partnership acting in their commercial or professional capacity when concluding a legal transaction.
3. Contract Conclusion
We make available our Gift Cards and other services in the B2B offer exclusively to Entrepreneurs and expressly not to consumers. The product offers or other sales information presented on our websites are non-binding proposals within the meaning of Art. 7 para. 1 of the Swiss Code of Obligations. Any order of goods, whether made verbally, in writing or electronically, is a binding order. Insofar as the option of ordering online has been set up, you can already submit a binding order at the end of the ordering process by clicking on the “Buy Now” button. A Contract is only concluded when an order confirmation is sent by us or the goods are shipped. If we send you an offer for acceptance with the request for countersignature, a Contract is only concluded with our receipt of the counter-signed offer, either the original document, by fax or as a scanned copy.
Prices are net, unless expressly stated otherwise. The prices valid at the time of placing the order apply. Thus, no claim to receive gift cards at earlier or later applicable, cheaper prices, shall be valid. If, exceptionally, we take into account price reductions for your current order before the delivery of the Gift Cards, this is done on a voluntary basis and without any legal obligation whatsoever.
4. Purpose of the Contract
The Customer orders the Gift Cards for the purpose of passing them on to their Participants as part of their program. The Customer may use the Gift Cards exclusively for these purposes. They may under no circumstances sell or use them to acquire services provided by the Card Issuer for their own business purposes. Blackhawk points out that the use of Gift Cards for purposes contrary to the Contract is in breach of anti-money laundering regulations and therefore liable to prosecution.
5. Object of the Contract
For Gift Card orders, the object of the Contract is the delivery and activation of these Gift Cards. The exchange or pay out in cash of the value represented by the Gift Cards is not possible. The use of the Gift Cards for the payment of goods or services is not an object of the contract. By ordering a Gift Card, the Customer is creating a separate contractual relationship with the respective Card Issuer, subject to the latter’s Card Conditions in their current form. The Customer and their Participants are not authorized to request Blackhawk to change the Card Conditions of the Card Issuers. No rights of use to the Brands of the Card Issuers are granted.
Blackhawk vouches for the genuineness of the Gift Cards. Otherwise Blackhawk shall not liable for the contractual relationship between the Customer or their Participant and the Card Issuer; in particular not for warranty obligations of the Card Issuer or third parties for goods or services purchased by the Participant using a Gift Card issued by a Card Issuer.
6. Delivery and Shipment
We ship the Gift Cards exclusively within Switzerland, usually within 5 business days as of the receipt of the order with the regular Swiss Post, unless expressly agreed otherwise. We are entitled to partial deliveries, provided the partial delivery is reasonable for the buyer in individual cases.
Our obligation is limited to the delivery of the Gift Cards to the shipping or transport company subject to the supply of Gift Cards of the same type and the same name available in our warehouse. No further procurement obligation exists. In particular, there is no obligation to reorder Gift Cards of the same type from the supplier. If an ordered Gift Card is not available because we are not supplied by the Card Issuer despite a contractual obligation of the latter, we are entitled to rescind the Contract. In such a case we will inform the Customer immediately that the ordered Gift Card is not available and refund any payment already made.
Shipping is at the expense and risk of the Customer. Blackhawk shall be responsible for the proper delivery to the shipper, carrier or other person designated to carry out the shipment. The amount of the shipping costs is negotiated individually. The buyer carries the risk of accidental deterioration and accidental loss arising from the elimination and delivery of the Gift Cards for shipping.
Unless otherwise agreed, the Gift Cards shall only be activated and valid after receipt of payment. They can usually be redeemed 24 hours after activation.
The purchase price shall be due for payment upon sending our invoice. The Customer shall only be entitled to offset and exercise a right of retention insofar as the counterclaims are undisputed or legally binding and based on the same contractual relationship.
8. Further Duties of the Customer
The Customer undertakes to inspect the Gift Card or other goods as soon as it is practicable in the normal course of business and, in the event of a defect, to immediately notify Blackhawk. If the customer fails to make this notification, the goods shall be deemed approved except in the case of a defect that could not be detected during inspection. If such a defect arises later, the corresponding notification shall be made immediately after discovery; otherwise, the goods shall be deemed approved. Timely issuance of the notification is sufficient to preserve the rights of the Customer. Blackhawk shall not be entitled to invoke this provision in case of fraudulent concealment of the defect.
The Customer shall not make any promises, representations, guarantees or warranties in relation to the Gift Cards other than those specified in the applicable Card Conditions. Similarly, the Customer shall not pretend to be authorized to submit such statements. They are not authorized to make or accept statements of intent on behalf of the Card Issuers or Blackhawk.
9. Property Protection and Rights of Use
Insofar as the Gift Cards, the packaging or other materials or documents to be supplied provide for a custom design, e.g. the application of names, identifiers, drawings, graphics, logos, etc., the Customer shall transfer the desired contents to Blackhawk in the form specified in the offer. The Customer grants Blackhawk all rights of use required to manufacture the Gift Cards designed in this way, but only for the purpose of manufacturing the Gift Cards for the Customer. The Customer shall be liable to Blackhawk for ensuring that the use does not violate the rights of third parties, in particular not trademarks, design patents or copyrights. In the event of a violation of the rights of third parties by such use, the Customer shall exempt Blackhawk from all claims of third parties and all of the costs incurred by Blackhawk upon first request.
Blackhawk shall be entitled to name the Customer as a reference in their promotional materials. For this purpose, and strictly limited to these, Blackhawk shall be permitted to use the Customer’s Brands to a reasonable extent.
The terms and conditions of the respective Card Issuer in their current version shall apply to the redemption of the Gift Cards. By redeeming the Gift Card, its owner only acquires claims against the issuer of the Gift Card.
The Gift Cards are only appropriate for their express purpose, beyond which no guarantees are accepted. The limitation period for defect claims is 12 months beginning with the transfer of risk. This does not apply in the case of claims for damages. Minor or insignificant deviations in terms of color, material thickness and execution of Gift Cards are reserved and do not lead to a deviation from the agreed conditions. We accept unlimited liability for damages resulting from culpable injury to life, body or health. We shall only be liable for other damages if the damage has been caused by us, our legal representatives, employees or vicarious agents, intentionally or through gross negligence. In addition, we shall be liable for minor negligent breaches of essential contractual obligations (“cardinal obligations”). In cases of minor negligence, our liability shall be limited to the typical foreseeable contractual damage. Mandatory legal regulations such as the Swiss Product Liability Act remain unaffected by the above provisions.
The Gift Cards are freely transferable. Blackhawk shall assume no liability for the theft, decay or illegal use of the vouchers. Replacement in case of loss shall not be granted.
11. Force Majeure
Force majeure refers to an external, unforeseen and even with the utmost expected care unavoidable event (including strikes, lockouts or other industrial disputes, civil unrest, rebellion, terrorism, insurgency, invasion, war, threat of or preparation for war, unavoidable accidents, earthquakes, sinking, epidemics or other natural disasters, as well as fires, explosions, storms and floods to a reasonably unpredictable extent).
In case of delivery and service performance delays due to force majeure, the delivery and service performance period shall be extended by the duration of the hindrance. If the delivery or service performance becomes impossible or unreasonable due to force majeure, the contractor shall be released from their obligation. If the delivery/service performance delay lasts longer than two months, the Customer shall be entitled to reject the corresponding deliveries or service performances.
Claims for damages are excluded insofar as these are caused by force majeure. Claims for fraudulent actions remain unaffected.
12. lackhawk’s Right of Withdrawal
Blackhawk shall have the right to withdraw from the Contract with a Customer who has misrepresented their entrepreneurial status contrary to the truth.
13. Data Protection
14. Place of Performance, Jurisdiction and Applicable Law
These terms and conditions shall apply exclusively. Additional or deviating provisions or general terms & conditions provided by the customer (e.g. attached to an order or invoice) are excluded unless expressly accepted in writing by Blackhawk. This shall also apply to any waiver of the written form requirement. Blackhawk reserves the right to change these General Terms & Conditions with effect for future orders. The General Terms & Conditions are included in every order in the version valid at the time the order is placed. The parties do not establish a continuing obligation.
The Law of the Swiss Confederation, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are applicable to these General Terms & Conditions and the entire legal relationship between us and our contractual partners. The exclusive place of jurisdiction for all disputes arising from a business relationship with us is the judicial district of Horgen.