Giftly Legal Notices
GIFTLY TERMS OF SERVICE
Welcome to the terms of service that govern your use of the services provided by GoLocal, Inc. (“Giftly,” “We,” “Our,” “Company,” or “Us”). We maintain a gifting service that allows you to give and receive Giftlys (singularly called “a Giftly”, in plural referred to as "Giftlys") through our mobile and desktop web pages and applications (collectively the “Service”), www.giftly.com, and all linked pages thereof (collectively, the “Site”).
The terms and conditions below in their entirety are a legal agreement (the “Agreement”) between you and Us. To use the Service, you must accept all of the terms of this Agreement. By clicking on the "Log in", "Sign-up" “connect”, "Gift it", "I'm here", “create account”, "buy", "buy now”, “place order”, “purchase", "I'm here", “register”, “use”, “use this now", “activate”, or "save for later" buttons you agree to accept all of the terms.
Company is not a bank, a money services business (“MSB”), a money transmitter (“MTB”), or an issuer of stored value products, as defined by the United States Department of Treasury. We maintain a gifting service that offers notification and marketing services for stored value products issued by our banking partners. The primary banking product available through our service is called the Giftly Stored Value Account (“Giftly SVA”), which is a stored value account that a buyer (“Buyer”) creates to hold funds for a beneficiary whom they designate (“Recipient”).
To buy, receive, or redeem the products offered by our banking partners, you must create an account (“Account”) on www.giftly.com via a mobile device or a desktop computer, as described in the Account section below. via a mobile device or a desktop computer, as described in the Account section below.
Buying a Giftly
What you purchase as a Buyer
As a Buyer, you are purchasing Company’s notification and marketing services and a stored value product sold by one of our banking partners, together referred to as a “Giftly”. Note that a Giftly is not a gift card or a gift certificate because the funds are not redeemed at a merchant but are transferred directly to the Recipient.
To purchase a Giftly, begin by customizing the gift. You can suggest a merchant or location where you’d like the Recipient to make a purchase, suggest an item you’d like them to buy, and select a theme you think they’d enjoy. You’ll also choose how you’d like the Recipient to be notified of the Giftly. Either the company can complete this notification or you can do it directly.
By clicking "buy", "buy now”, "gift it", “place order”, or “purchase" you authorize Company to work with our partners to notify the Recipient and provided them with a secure code or link that they can use to redeem the Giftly and receive the funds. If you’ve chosen to notify the Recipient yourself, we will send you the code and instructions to provide the Recipient.
When you make a purchase, We collect your billing information, email address, IP address, and the Recipient’s delivery information.
Fees & Taxes - In exchange for providing the Service, the Company charges processing and service fees (collectively “fees”). As the Buyer of a Giftly the Buyer agrees to pay these fees at the time of checkout. Optional features, additions, or add-ons to a Giftly may incur additional fees. The Buyer agrees to pay the applicable fees whenever the Buyer uses our Service. These fees will be indicated on your receipt, at the time of checkout. Subject to the terms of this Agreement, We reserve the right to change Our fees. If We change Our fees, the new fee will be displayed during checkout. All fees, charges, and payments collected or paid through the Service are denominated in U.S. dollars.
Expiration - Funds underlying a Giftly SVA do not expire.
What happens when you buy a Giftly
When you buy a Giftly, the funds associated with your purchase are captured and transferred to a custodial stored value account at one of Our partner banks.
When you buy a Giftly, the funds will be held in a Giftly SVA in your name until the Recipient fulfills the requirements to receive the funds as explained in your Account Holder Agreement.
Refund – If, prior to the disbursement of the funds associated with the Giftly, you, as the Buyer, are unhappy with your purchase, the Company will return the value of the purchase to you, minus any fees, in accordance with our cancellation policy. If technical problems prevent or unreasonably delay delivery of your product, your exclusive remedy is either replacement or refund of the price paid, as determined by the Company. You may contact us at email@example.com with refund or cancellation requests.
Paying for a Purchase - In order to purchase a Giftly, the Company accepts many forms of payment, including U.S. bank issued credit cards and debit cards. To complete a purchase, you will be asked to provide your billing information. We, or our payment processor, will charge your form of payment the full balance of your transaction. Billing occurs at the time of, or shortly after, your transaction.
You agree that you will pay for the Service you purchase, and that the Company may charge your credit card, debit card, or other form of payment for any products purchased and for any additional amounts that may be accrued by or in connection with your Giftly Account. You are responsible for the timely payment of all fees and for providing the Company with a valid form of payment.
Prices for products offered via the Service may change at any time, and the Company does not provide price protection or refunds in the event of a price reduction or promotional offering. The Company reserves the right to change content option, including eligibility for and availability of particular features and promotions, without notice.
Receiving a Giftly
When you receive a Giftly, you may be notified by:
As part of the notification and the acceptance of the Giftly, you will receive a code and/or a link that can be entered on Our website at www.giftly.com/entercode to access the Giftly that you were given and to redeem it.
To redeem a Giftly:
To redeem a Giftly and receive the funds being held for you in a Giftly SVA, follow these steps:
Enter the code that is either printed or displayed on the notification that you received. Or, if you received the Giftly via email, click on the link or button in the email.
Review the Giftly that you received. Note the amount of the Giftly, the place and item suggested by the Buyer for you.
Click the “Receive the Funds” button when you wish to redeem.
If you do not have a pre-existing Account, create one. As part of the Account creation process, you will provide the Company with necessary personal and financial account information so you can receive the funds. This information will be associated with your Account. If you have a pre-existing Account, log in.
Request the funds.
Tell the Buyer where you went and what you got with the funds they have given you.
Once the Company has validated your redemption request, Company transmits this request to Our partner bank. Our partner bank then transfers the funds from the custodial stored value account to the financial account the Recipient has linked to their Giftly Account or works with our payment partners to deliver the gifted funds into the financial account linked to your Giftly Account. The funds can take up to 7-days to show up in the financial account you linked to your Giftly Account and the Company cannot guarantee the timeliness of this transaction. The Company reserves the right to deny any redemption requests it receives that it deems to be illegitimate or in violation of these terms of service.
A Giftly Account (“Account”) allows you to conveniently access Giftlys that you have sent and received. You must have an Account to purchase or redeem a Giftly.
After submitting the information required to make a purchase, if you don’t already have an Account, one will automatically be created for you. The login name for your Account will be the email address that you entered during the purchase process. You may optionally create a password for your Account during the purchase process or anytime afterwards by going to www.giftly.com/signup. If you chose not to create a password, you can access your Account through the secure link that is included in the purchase receipt email.
You must register for, and be issued, an Account with the Company to redeem a Giftly. You will be required to enter a login name and create a password for your Account during the redemption process.
By creating an Account, you agree to allow the Company to collect information about you and your use of the Service. You also allow Company to collect information you authorize from third party services, including but not limited to Facebook. Additionally, you agree to provide accurate and complete information when you register with, and as you use, the Service. You further agree to update your registration information in order to keep it accurate and complete. You agree that the Company may store and use the information you provide, or authorize the Company to access, in connection with the Service.
Company will attempt to automatically associate all Giftlys that are sent or received by you to your Account. If a Giftly has not been associated correctly, report this to Company immediately.
Account Updates and Statements - You will not be issued a statement in connection with your Account. The status of all the Giftlys you’ve sent and received is available at www.giftly.com/my-giftlys. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Giftlys and your use of the Service and (b) reconciling all transactional information associated with your Giftlys. If you believe that there is an error, or unauthorized transaction activity associated with your Giftlys, you agree to contact us immediately.
Fees Associated with Your Account – There are no fees associated with creating an Account or having Giftlys linked to your Account, unless a Giftly has been deemed by the Company to be unlikely to be redeemed. Company will use statistical methods to determine whether a Giftly is unlikely to be redeemed. When the Company determines that a Giftly is unlikely to be redeemed, a Dormant Giftly Fee may be assessed against your Account. When a Dormant Giftly Fee is due, you authorize Company to disburse funds from the Giftly SVA that’s associated with the Giftly that’s unlikely to be redeemed to pay the fee, unless you have arranged an alternative form of payment by contacting firstname.lastname@example.org. In the event that a Giftly that was deemed unlikely to be redeemed is redeemed, Company may, but is not obligated to, refund any fees that were assessed. Our goal is for Recipients to have a normal redemption experience, even in the event of an unlikely redemption.
Monetary funds paid by Buyers will not be held in your Giftly Account, but rather, will be placed in a stored value custodial account of a FDIC insured bank.
These funds are not owned or controlled by the Company. When a Giftly is given as part of an incentive or discount program (for instance, “Give a $15 Giftly for $5 when you purchase a Christmas Giftly today.”), the funds paid by the Buyer will be placed in a stored value custodial account and the promotional funds will only be supplied by the Company upon a successful redemption.
When you carry a positive Giftly SVA balance, your funds will be co-mingled and held with other users’ funds in one or more pooled accounts at one or more FDIC insured banks by us or a service provider, on your behalf and for the benefit of you and other users holding balances. U.S. dollar balances held in the pooled account are eligible for FDIC pass-through insurance, meaning that your Balance may be insured up to the FDIC maximum, which is currently $250,000. We have sole discretion over the establishment and maintenance of any pooled account. Funds associated with Giftlys are at all times be held separate from our corporate funds. We will not use Giftly funds for our corporate purposes, will not voluntarily make funds available to our creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit our creditors to attach the funds. You will not receive interest or any other earnings on any funds that we handle for you. As consideration for using the Service, you irrevocably assign to Us all rights and legal interests to any interest and/or other earnings that may accrue or are attributable to Our holding of your balance in a pooled account.
Privacy & Security
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. You acknowledge that you provide your personal information at your own risk and the Company shall not be liable for the unauthorized access of your personal information.
Interacting With Giftly
What you need to have to use the Service - Use of the Service requires Internet access and certain software (fees may apply), and may be affected by the performance of these, and other, factors. You agree that these requirements are your responsibility. The Service is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the Service.
The Company does not warrant, represent, or guarantee that its Site or Service will be available on your mobile device. If you do use a mobile device to access the Service, you are subject to the terms of your agreement with your mobile device manufacturer and carrier. You may incur charges from your mobile carrier for accessing the Service, which are solely your responsibility.
Who May Use The Service - Our Service is available for individuals who are at least eighteen (18) years of age or business entities authorized to conduct business by the state in which it operates. The Service is available only in the United States, its territories, and possessions. You agree not to use or attempt to use the Service from outside these locations. You may not export the Service directly or indirectly, and acknowledge that the Service may be subject to export restrictions.
To access the Service you represent and warrant to Us that: (a) you are at least eighteen (18) years of age; (b) a person in the United States; (c) that the Recipient of the Giftly is a person in the United States and at least eighteen; (d) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (e) the name identified by you when you create your Account is your legal name (f) any transaction entered into by you will represent a binding agreement; and (g) you and all transactions initiated by you will comply with all applicable federal, state, and local laws, rules, and regulations, including any applicable tax laws and regulations.
The Company’s Rights - We reserve the right to decline to provide the Service to any person for any or no reason. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate your use of the Service and Sites. The Company reserves the right to close a user’s Account or take other appropriate actions if such user violates any of the this terms of service in whole or part, or engages in any conduct the Company deems inappropriate.
Interacting with Giftly - Your use of the Service includes the ability to enter into agreements and to make transactions electronically. You acknowledge that either your using of the Service or your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this Site, including notices of cancellation, policies, contracts, and applications. To access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Interacting with other Members of the Service - You are solely responsible for your interactions with other users of our Service. We will not be responsible for any damage or harm resulting from your interactions with other users of our Service. We do not confirm any user's purported identity. We do not endorse any persons who use or register for our Services, whether as senders or recipients. We do not investigate any user's reputation, conduct, morality, criminal background, or verify the information that any user submits to the Site.
If you receive a Giftly from someone whom you feel is acting or has acted inappropriately, including but not limited to offensive, violent or sexually inappropriate behavior, or who engages in any other disturbing conduct, you should report such person to the appropriate authorities and to us at email@example.com. Your report of misconduct by another shall not obligate us to take any action, unless required by law, or cause us to incur any liability.
By using the Site or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users will be limited to a claim against the particular user or users who caused you harm. You agree not to attempt to impose liability on, or seek any legal remedy from the Company. You release the Company from any and all claims, demands, damages (actual, consequential, nominal, punitive, or otherwise), equitable relief, and any other legal, equitable, and administrative remedy, of every kind and nature, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, past, present, or future, arising out of or in any way connected with your communication or interaction with other users on the Site.
THE COMPANY WILL NOT BE LIABLE FOR ANY TRANSACTIONS CONDUCTED BY YOU WITH THIRD PARTIES THROUGH THIRD PARTY SERVICES NOR FOR ANY LIABILITY ARISING FROM THE REPRESENTATIONS OR INFORMATION PROVIDED ON SUCH WEBSITES.
Intellectual Property - You agree that the Service, including graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Service, contains proprietary information and material that is owned by the Company, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service in any manner, and you shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
“Giftly,” “www.giftly.com,” and other Giftly trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of GoLocal Inc. in the United States. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
You may not display any portion of our Site in a frame, or any content from our Site through in-line links, without our prior written consent, which may be requested by contacting us at firstname.lastname@example.org. You may, however, establish ordinary links to the homepage of our Site without our written permission, and you may make use of embedded code, also know as "widgets," if we have provided the code.
Fraud, Abuse and Harm
We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of any agreement or exposes you, other users, our service providers or the Company to harm. Harm includes fraud and other criminal acts. If we reasonably suspect that your Giftly Cardless Account or Giftly Card has been used for an unauthorized, illegal, or criminal purposes, you give us express authorization to share information about you, your Giftly Cardless Account or Giftly Card purchase and any of your activity with law enforcement authorities.
The Company reserves the right to review, postpone, or cancel the purchase of any Giftlys or the dispersal of funds to any user at our discretion. Additionally, you represent and warrant that you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service, and you will not use the Service for: (1) any illegal activity; (2) adult entertainment oriented products or services, regardless of the manner or form of such products; (3) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries.); (4) internet/mail order/telephone order firearm or weapon sales; (5) internet/mail order/telephone order cigarette or tobacco sales; (6) drug paraphernalia; or (7) betting, including lottery tickets, casino gaming chips, off-track betting, and wagers at races; (8) infringing the rights or any person or entity, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service-attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods of technology; (9) transmitting, distributing, posting or submitting any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; (10) the distribution of unsolicited commercial email ("spam") or advertisements; (11) "stalking" or harassing any other user of our Services or collecting or storing any information about any other user other than for purposes of transacting as a user of the Service; (12) registering for more than one user account or registering for a user account on behalf of an individual other than yourself; (13) impersonating any person or entity, or falsifying or otherwise misrepresenting yourself or your affiliation with any person or entity; (14) running automated scripts to collect information or otherwise interact with the Service or the Site; or (15) advocating, encouraging, or assisting any third party in doing any of the foregoing.
Termination - We may terminate this Agreement and close your Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and access to your Account (including the funds in your Account) if you (a) have violated the terms or conditions of the Agreement, (b) pose an unacceptable risk to us, or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
If your Account is terminated for any reason or no reason you agree: (a) to continue to be bound by this Agreement; (b) to immediately stop using the Service; (c) that we reserve the right, but have no obligation, to delete your information and account data stored on our servers; and (d) that the Company shall not be liable to you or any third party for termination of your access to the Service or deletion of your information or account data.
You may terminate this Agreement and other agreements by closing your Account at any time. Upon closure of an Account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable fees, will be paid out to you in a reasonable time. If an investigation is pending at the time you close your Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
If we terminate this Agreement and your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination.
Restrictions, Limitations, Reporting Requirements and Warranties
Restricting Access to Giftly Card or Giftly Cardless Account Card Funds for Investigations - We may restrict access to funds in your Giftly Card or Giftly Cardless Account to allow us to investigate the use of your Giftly Card or Giftly Cardless Account, resolve any pending dispute, in response to a court order or if otherwise requested by law enforcement or any governmental entity. We may restrict access to funds in your Giftly Card or Giftly Cardless Account for the time that it takes for us to complete any pending investigation or resolve a pending dispute. We also may restrict access to your funds as required by law, court order, or if otherwise requested by law enforcement or governmental entity.
Tax Reporting Requirements – The Company sells a packaged gift item including either a physical stored value card or a virtual stored value account and a personal message. Because state and local tax laws vary significantly by locality, you understand and agree that you are solely responsible for determining your own tax reporting requirements. We cannot and do not offer tax advice to users.
Purchasing Limitations - We may, in our sole discretion, prohibit the sale of a Giftly, the issuing of a Giftly Card, or the creation of a Giftly Cardless Account for any reason.
Value of purchase - At the time of purchase, your Giftly Cardless Account or Giftly Card account has a fixed value denominated in U.S. dollars. We do not pay interest or any other earnings on any value associated with your Giftly Cardless Account or Giftly Card. If the Recipient of a Giftly permits someone else to use it, we will treat this use as if the Recipient has authorized that person to use the Giftly Card. Resale of a Giftly is strictly prohibited.
Warranties – The Company make no warranties, express or implied, with respect to a Giftly Cardless Account or a Giftly Card, including, without limitation, any express or implied warranty of merchantability or fitness for a particular purpose. These limitations may not apply to you. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or liability may not apply to you, and you may also have additional rights.
Risk of Loss - Risk of loss and title for Giftly Cards transmitted electronically pass to the purchaser in Virginia upon electronic transmission to the Recipient. Risk of loss and title for all electronically delivered transactions pass to the purchaser in California upon electronic transmission to the Recipient. The Company is not responsible for lost or stolen Giftly Cards.
Giftly is not a money services business – The Company is not a bank or a money services business (“MSB”) and we do not offer banking or MSB services as defined by the United States Department of Treasury. Accordingly, you agree that you will not use the Service primarily for the purpose of transmitting funds.
Regardless of the state of your residence as a Buyer or Recipient of the Service, this Agreement will be governed by Delaware law as applied to agreements entered into and to be performed entirely within Delaware, without regard to its choice of law or conflicts of law principles, except to the extent preempted, superseded, or supplemented by federal law. You agree that the provisions of this Agreement relating to interest, charges and fees shall be governed by federal law and construed in accordance with federal law, and as made applicable by federal law, the law of the state of Delaware. This Agreement does not limit any rights that the Company may have under trade secret, copyright, patent or other laws.
Changes to this Agreement
The Company reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. If written notice is required by law, the Company will provide such notice to you. Amendments will apply to outstanding balances, except as otherwise indicated in the written notice or as otherwise provided by applicable law. Your continued use of the Service will be deemed acceptance thereof. This Agreement, except when amended in accordance with this Agreement, is the final expression of the Agreement between the Company and you and may not be contradicted by evidence of any alleged oral agreement. This Agreement and any revision thereof can be found at www.giftly.com.
By clicking on the "buy", "buy now”, "Sign up", "Log in", “place order”, “purchase", "use", "redeem", “register”, “use this now", or "save for later" you hereby adopt that click as your electronic signature, and both consent to and agree that: (1) We can provide disclosures required by law and other information about your legal rights and duties to you electronically.
What You will Need - You understand that in order to access and retain the electronic Disclosures you will need the following: (1) A computer with an Internet connection. (2) A current web browser that includes 128-bit encryption. (Minimum recommended browser standards are Microsoft Internet Explorer version 7.0 and above, Firefox version 4.0 and above, or Safari 4.0 and above.) The browser must have cookies enabled. (3) A valid email address. (4) Sufficient storage space to save past Disclosures OR an installed printer to print them. (5) If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add email@example.com and firstname.lastname@example.org to your email address book.
Requesting Paper Documents and Withdrawing Consent - You understand that you may request paper copies of Disclosures within 180 days of the date of the Disclosure, and that we will provide them to you by mail for free. You understand that you have the right to receive these Disclosures in paper form and that you may withdraw your consent by logging into www.giftly.com and going to “My Giftlys.” You can also request paper copies and/or withdraw consent by contacting our Chief Compliance Officer, PO Box 471724, San Francisco, CA 94147
Updating E-mail Address - At any time, you can update the e-mail address to which we will send alerts that your Disclosure is available. You can change your e-mail preferences by logging into www.giftly.com and going to “My Giftlys”. You can also do this by contacting us at email@example.com.
Legal Effects - By consenting, you agree that electronic Disclosures have the same meaning and effect as paper Disclosures to you, as we are required to do so. When we send you an email alerting you that Disclosure is available electronically and make it available online, that shall have the same meaning and effect as if we provided a paper Disclosure to you, whether or not you choose to view the Disclosure, unless you had previously withdrawn your consent for electronic Disclosures.
Disclaimer of Warranties
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, THE COMPANY, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS PROCESSORS, SUPPLIERS OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS PROCESSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL GIFTLY, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You will indemnify, defend and hold us and our processors harmless (and our respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of our terms and conditions; (b) your wrongful or improper use of the Service; (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you); (d) your violation of any third party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (e) your violation of any law, rule or regulation of the United States or any other country; or (f) any other party’s access and/or use of the Service with your unique username, password or other appropriate security code.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and the Company, and describe the entire liability of the Company and its vendors and suppliers and your exclusive remedy with respect to your access and use of the Service. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
The Company’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. The Company will not be responsible for failures to fulfill any obligations due to causes beyond its control. In the event of a conflict between this Agreement and any other Company agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Headings in this Agreement are included for convenience only, and shall not be considered in interpreting this Agreement.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount sought is less than $10,000.00 USD per claimant, the dispute shall be resolved through binding non-appearance-based arbitration before a sole arbitrator and through an alternative dispute resolution (ADR) provider selected by the party initiating arbitration from a list of qualified providers maintained by the Company. The parties further agree that the prevailing party in the arbitration shall be entitled to recover its costs of arbitration or of any related court proceedings (including attorneys’ fees and expenses), collection agency fees, and any applicable interest. The arbitrator’s award shall be final and binding on the parties, who undertake to fulfill the terms of the award without delay. Judgment on the award may be entered in any court of competent jurisdiction.
Limitation on Time to Sue
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this Agreement or by law must commence within one year after the cause of action accrues.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction.
If any provision of this Agreement is held to be invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining provisions of this Agreement.
The Company reserves the right to take steps we believe are reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement. You agree that the Company has the right, without liability to you, to disclose any registration data and other Account information to law enforcement authorities, government officials, or a third parties, as the Company believes is reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement.
The Company is not responsible for any typographical errors.
Please contact us at firstname.lastname@example.org with any questions regarding these Terms.
Last Updated: September 4, 2012
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