Terms and Privacy
5. Digital Millennium Copyright Act
5.1 DMCA Notification.
Giftbit complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended).
If Subscriber has any complaints with respect to material posted on the Giftbit Services, Subscriber may contact Giftbit’s Designated Agent at the following address:
Giftbit, Corp. 1209 Orange Street, Wilmington, Delaware, 19801
E-mail: firstname.lastname@example.org Any notice alleging that materials hosted by or distributed through the Giftbit Services infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Giftbit Services;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Giftbit Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.5.2 Repeat Infringers. Giftbit will promptly terminate without notice the accounts of users that are determined by Giftbit to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Subscriber Content removed from the Giftbit Services more than twice.
6. Fees and payment
6.1 Subscriber Account.
Subscriber will be required to register an account with the Giftbit Service (“Subscriber Account”). Subscriber agrees to provide accurate information to Giftbit in connection with the registration process and keep the information accurate and up-to-date at all times. Subscriber is solely responsible for maintaining the confidentiality of its account and password. Subscriber agrees to accept responsibility for all activities that occur under the Subscriber Account, and will immediately notify Giftbit if it has reasonable belief that the Subscriber Account is no longer secure.
6.2 Funding Subscriber Account.
Subscriber must purchase credit for the Giftbit Services by funding the Subscriber Account in accordance with the payment terms described in Section 6.4. Payments for any applicable subscription fees for the Giftbit Services and all Gift Cards that Subscriber sends to Recipients will be debited from the Subscriber Account.
6.3 Purchasing Digital Gift Cards.
The Giftbit Services permit Subscriber to offer Gift Cards to Recipients and to purchase Gift Cards that Recipients claim. When Subscriber offers a Gift Card to a Recipient, the then-current balance of the Subscriber Account (“Account Balance”) will be allocated for the order amount (“Allocated Amount”) pending claiming of the Gift Card by the Recipient or expiration of the Gift Card offer. If the Recipient claims the card, the Allocated Amount is debited in the amount of the Gift Card. If Subscriber cancels the Gift Card prior to its redemption by the Recipient or if the Gift Card offer expires, 50% (fifty percent) of the Allocated Amount—minus any applicable Giftbit service fees—will be refunded to the Account Balance. The Allocated Amount of each Gift Card is non-refundable once the Recipient claims the Gift Card. For clarity, a Recipient claims a Gift Card once the Recipient accepts the offer of the Gift Card from Subscriber, irrespective of whether the Recipient uses the Gift Card to make purchases from a Merchant. A claimed and activated Giftbit Visa Incentive Card expires six-months after the date of activation. The Subscriber Account Balance does not receive credit for any amount remaining on an expired Giftbit Visa Incentive Card. Subscriber must have an Account Balance in excess of any desired purchase amounts in order to make the purchase.
6.4 Fees and Payment Terms.
Subscriber will pay Giftbit the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, in accordance with the then-current Giftbit Pricing Table found at https://www.giftbit.com/pricing/. Subscriber can fund the Subscriber Account via ACH, wire transfer of immediately available funds, or other form of payment agreed by Giftbit, using the payment instructions provided on the Giftbit Pricing Table. The Account Balance will only be updated, and paid amounts will only be available for use, once the payments are processed and credited to the Subscriber Account. Funds added to the Subscriber Account are converted to Giftbit Credits. Payments processed and credited to the Subscriber Account are considered non-refundable, unless Subscriber would like to cancel the Subscriber Account as permitted in Section 7.2. Subscriber understands that the processing of payments relies on third parties beyond Giftbit’s control and amounts paid may not be immediately available for use on the Giftbit Services. Gift Cards can be denominated in either U.S. or Canadian dollars so long as Subscriber has funded the Subscriber Account in the currency it wishes to send the Gift Cards and the Account Balance in such currency exceeds the amount of Gift Cards that Subscriber wishes to offer in such currency. Subscriber will pay all fees incurred by Giftbit for accepting payment via wire, ACH, or other agreed upon payment method. All sums payable to Giftbit shall be paid in full by Subscriber, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance or other charges relating to the payment (or any handling of the payment) thereof.
Other than net income taxes imposed on Giftbit, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement or the purchase of Gift Cards from Merchants. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Giftbit after all such taxes are paid are equal to the amounts that Giftbit would have been entitled to in accordance with this Agreement as if the taxes did not exist.
7. Term and termination
This Agreement will commence upon the Effective Date and continue for the initial term of 1 year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive 1-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
7.2 Termination for Convenience.
Subscriber may terminate this Agreement at any time by cancelling the Subscriber Account using the settings functions in the Giftbit Services or by emailing Customer Support from the email address associated with the Subscriber Account. Giftbit may
terminate this Agreement at any time on not less than 60 (sixty) day’s prior written notice to Subscriber.
7.3 Termination of Use; Discontinuation and Modification of the Giftbit Services.
If Subscriber violates any provision of this Agreement, Subscriber’s permission to use the Giftbit Services will terminate automatically. Additionally, Giftbit, in its sole discretion may terminate Subscriber’s Subscriber Account or suspend or terminate Subscriber’s access to the Giftbit Services at any time, with or without notice. Giftbit also reserve the right to modify or discontinue the Giftbit Services at any time (including, without limitation, by limiting or discontinuing certain features of the Giftbit Services) without notice to Subscriber. Giftbit will have no liability whatsoever on account of any change to the Giftbit Services or any suspension or termination of Subscriber’s access to or use of the Giftbit Services.
7.4 Termination for Material Breach.
Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. If Subscriber fails to timely pay any fees, Giftbit may, without limitation to any of its other rights or remedies, suspend performance of the Giftbit Services until it receives all amounts due.
7.5 Termination for inactivity.
If Subscriber’s account is inactive for a period of six (6) months or more, than Subscriber’s account will automatically terminate. Specifically, an inactive account means that the subscriber’s account (1) does not have any active, outstanding offers (2) has not had any active, outstanding offers for 6 months.
7.6 Post-Termination Obligations.
If this Agreement is terminated for any reason, (a) Giftbit will refund the available Account Balance in accordance with this section; (b) any outstanding offers of Gift Cards that have not been claimed at the time of termination will remain in effect until either claimed by the applicable Recipient or the Gift Card offer expires or is cancelled by Subscriber; (c) Gift Card offers that expire or are cancelled after the termination of this Agreement will be refunded to Subscriber, minus any applicable Giftbit service fees, and (d) any and all liabilities accrued prior to the effective date of the termination will survive. In processing refunds of any Account Balance, Giftbit will give notice (“Refund Notice”) to Subscriber requesting directions on the account or other mechanism to which such refunds should be made, subject to such direction being commercially reasonable and in accordance with accepted practices and applicable law (where a refund to any financial institution within the USA or Canada shall be considered to reasonable and acceptable). Refunds shall be made within 30 days of receipt of applicable directions from Subscriber in the same currency in which the Account Balance is held. While Giftbit makes every reasonable effort to refund Account Balances promptly on termination, occasional subscribers fail to respond to Giftbit’s notices in respect of refunds and accordingly it is agreed that: (i) it is Subscriber’s responsibility to keep it’s contact details up to date in the Service; (ii) Giftbit shall give monthly Refund Notices to Subscriber following termination where there is an Account Balance until such time as such Account Balance is refunded or otherwise ceases; and (iii) if Subscriber fails to respond to Refund Notices within 6 (six) months of termination with appropriate refund details, Giftbit reserves the right to charge a monthly administration fee of the greater of either $1.00 or 10% of the outstanding Account Balance as at the date of termination, commencing the seventh (7th) month following termination.
8. Changes to the terms
Giftbit reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Subscriber’s rights or obligations, Giftbit will make reasonable efforts to notify Subscriber of such change. Giftbit may provide notice through a pop-up or banner within the Giftbit Services, by sending an email to any address Subscriber may have used to register for an account, or through other mechanisms. Additionally, if the changed Agreement materially modifies Subscriber’s rights or obligations, Giftbit may require Subscriber to provide consent by accepting the changed terms and conditions. If we require Subscriber’s acceptance of the changed terms and conditions, changes are effective only after Subscriber’s acceptance. If Subscriber does not accept the changed terms and conditions, we may terminate Subscriber’s access to and use of the Giftbit Services. All other changes are effective upon publication of the changed terms and conditions. Disputes arising under this Agreement will be resolved in accordance with the terms and conditions in effect that the time the dispute arose.
9. Warranties and disclaimer
9.1 Mutual Warranties.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, GIFTBIT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GIFTBIT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. GIFTBIT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE GIFTBIT SERVICES. GIFTBIT DOES NOT WARRANT THAT THE GIFTBIT SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE GIFTBIT SERVICES WILL BE SECURE OR UNINTERRUPTED. GIFTBIT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE GIFTBIT SERVICES IS ACCURATE OR COMPLETE
OR THAT ANY INFORMATION PROVIDED THROUGH THE GIFTBIT SERVICES WILL ALWAYS BE AVAILABLE. GIFTBIT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE GIFTBIT SERVICES.
10. Intellectual property infringement
10.1 Defense of Infringement Claims.
Giftbit will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Giftbit Services infringes or misappropriates any United States patent or registered copyright during the term of this Agreement if: (a) Subscriber gives Giftbit prompt written notice of the Claim; (b) Subscriber grants Giftbit full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Giftbit may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Giftbit Services). Subscriber will not defend or settle any Claim without Giftbit’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Giftbit will have sole control over the defense and settlement of the Claim.
10.2 Indemnification of Infringement Claims.
Giftbit will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Giftbit’s consent after Giftbit has accepted defense of the Claim); and (c) all amounts that Giftbit agrees to pay to any third party to settle any Claim under Section 7.1.
10.3 Exclusions from Obligations.
Giftbit will have no obligation under this Section 7 for any infringement or misappropriation arising out of or based upon (a) use of the Giftbit Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Giftbit Services or Custom Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Giftbit Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Giftbit Services in accordance with instructions provided by Giftbit, if the infringement or misappropriation would not have occurred but for such failure; (e) any of the Subscriber Content; or (f) any modification of the Giftbit Services not made or
authorized in writing by Giftbit where such infringement or misappropriation would not have occurred absent such modification.
If the Giftbit Services become, or in Giftbit’s reasonable opinion are likely to become, the subject of an infringement claim, Giftbit may, at its sole option and expense, either (a) procure for Subscriber the right to continue exercising the rights granted to Subscriber in this Agreement, (b) replace or modify the applicable item of the Giftbit Services so that it becomes non-infringing and remains functionally equivalent, or (c) terminate this Agreement and the licenses granted hereunder; except, that Giftbit is not obligated to take any such action, or any corrective or similar action, in respect of the Giftbit Services pursuant to this Agreement.10.5 Limited Remedy. This Section 7 states Giftbit’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Giftbit Services.
11. Subscriber indemnification
Subscriber will defend Giftbit from any actual or threatened third party Claim arising out of or based upon (a) Subscriber’s use of the Giftbit Services; (b) Subscriber’s breach of any of the provisions of this Agreement; or (c) the alleged infringement or misappropriation of any third party right by the Subscriber Content. Giftbit will: (i) give Subscriber prompt written notice of the Claim; (ii) grant Subscriber full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Giftbit will not defend or settle any Claim without Subscriber’s prior written consent. Giftbit will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
Subscriber will indemnify Giftbit from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Giftbit in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Giftbit in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 8.1.
12. Limitations of liability
12.1 Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, GIFTBIT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO
SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF GIFTBIT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 Cap on Liability.
UNDER NO CIRCUMSTANCES WILL GIFTBIT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO GIFTBIT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
12.3 Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY GIFTBIT TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
“Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. The parties agree that all Subscriber Data is the Confidential Information of Subscriber. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
13.2 Restricted Use and Nondisclosure.
During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not
disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
13.3 Required Disclosure.
If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
13.4 Return of Materials.
Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
14. Data; additional terms
14.1 Collection of Platform User Data.
Subscriber agrees and acknowledges that (a) the Giftbit Services automatically log all user activity conducted on the Giftbit Services, and (b) Giftbit owns all right, title and interest in and to the Services Use Data. Giftbit will not publicly disclose any Services Use Data in a manner that would reasonably likely identify Subscriber as being the source of such Services Use Data.
14.2 Subscriber Data.
Subscriber owns all right, title and interest in and to the Subscriber Data. Subscriber hereby grants Giftbit: (a) a nonexclusive, royalty-free, transferrable, worldwide license (with right to sublicense) to store, process, and otherwise use the Subscriber Data during the term of this Agreement (and for a reasonable amount of time after the term) in connection with the provision of the Giftbit Hosted Services, any Custom Services, or as otherwise necessary or helpful to perform its obligations under this Agreement, and (b) a nonexclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license (with right to sublicense) to store, process and otherwise use the Subscriber Data in connection with the conduct by Giftbit of its business operations; provided that it is never disclosed to any third party except in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Subscriber or its Clients). Giftbit will at all times protect and maintain any Subscriber Data that constitutes the Confidential Information of Subscriber in accordance with Section 10; provided, however, that notwithstanding anything to the contrary herein, any Subscriber Data that is in an aggregated or anonymous, de-identified form (i.e.,
in a form that cannot be used itself to identify Subscriber) will not be considered to be the Confidential Information of Subscriber.
14.4 Additional Terms.
Subscriber’s use of the Giftbit Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Giftbit Services or certain features of the Giftbit Services that Giftbit may post on or link to on the Giftbit Services (the "Additional Terms"), such as rules applicable to particular features or content on the Giftbit Services, subject to Section 11 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, this Agreement.
Giftbit will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
Giftbit may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Giftbit remains responsible for all of its obligations under this Agreement.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, insured courier (return receipt requested), or email to the appropriate party at the address set forth on the signature page of this Agreement. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.4. Notices are deemed given 4 business days following the date of mailing, 1 business day following delivery to a courier, or the next business day if sent by email (if no message delivery failure message is received by the sender).
15.5 Force Majeure.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
15.6 Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. To the extent that any lawsuit or court proceeding is permitted hereunder, Subscriber and Giftbit agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Newcastle County, Delaware for the purpose of litigating all such disputes.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Giftbit Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Giftbit Services will immediately terminate.
This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms
thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
15.11 Dispute Resolution and Arbitration.
(a) Generally. In the interest of resolving disputes between Subscriber and Giftbit in the most expedient and cost effective manner, Subscriber and Giftbit agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. SUBSCRIBER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER AND GIFTBIT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Notwithstanding subsection 15.11(a), the parties both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
(c) Arbitrator. Any arbitration between Subscriber and Giftbit will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Giftbit.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Giftbit does not have a physical address on file for you, by electronic mail ("Notice"). Giftbit’s address for Notice is: Giftbit, Corp., 1209 Orange Street, Wilmington, Delaware, 19801. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties agree to use good faith efforts to resolve the claim directly, but if they do not reach an agreement to do so within 30 days after the Notice is received, Subscriber or Giftbit may commence an arbitration proceeding. During the
arbitration, the amount of any settlement offer made by Subscriber or Giftbit shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event the dispute is finally resolved through arbitration in Subscriber’s favor, Giftbit shall pay Subscriber (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Giftbit in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
(e) Fees. In the event that Subscriber commences arbitration in accordance with this Agreement, Giftbit will reimburse Subscriber for its payment of the filing fee, unless the claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Newcastle County, Delaware, provided that if the claim is for $10,000 or less, Subscriber may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Subscriber’s billing address. If the arbitrator finds that either the substance of Subscriber’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, Subscriber agrees to reimburse Giftbit for all monies previously disbursed by it that are otherwise Subscriber’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. SUBSCRIBER AND GIFTBIT 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, unless both Subscriber and Giftbit agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications. In the event that Giftbit makes any future change to this arbitration provision (other than a change to Giftbit’s address for Notice), Subscriber may reject any such change by sending us written notice within 30 days of the change to Giftbit’s address for Notice, in which case Subscriber’s account with Giftbit shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments Subscriber rejects shall survive.
(h) Enforceability. If Subsection 15.11(f) is found to be unenforceable or if the entirety of this Section 15.11 is found to be unenforceable, then the entirety of this Section 15.11 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 15.6 shall govern any action arising out of or related to this Agreement.
15.12 Consent to Electronic Communications.
15.13 Contact Information.
The services hereunder are offered by Giftbit, Corp., located at 1209 Orange Street, Wilmington, Delaware, 19801. Subscriber may contact Giftbit by sending correspondence to the foregoing address or by emailing Giftbit at email@example.com. If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this Agreement.
15.14 Entire Agreement.
This Agreement is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Giftbit Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Giftbit has any authority to bind Giftbit with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Giftbit will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Giftbit specifically agrees to such provision in writing and signed by an authorized agent of Giftbit.
15.15 Subscriber Content for Subscriber Marketing Materials.
Subscriber grants Giftbit a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, transfer, display, reproduce, modify, and distribute Subscriber Content and Subscriber Marks (and the copyrights that exist in such Marks, if any) in whole or in part, in any media formats and through any media channels (now known or hereafter developed) in the form of Marketing Materials such as customer use cases and testimonials (collectively, “Subscriber Marketing Materials”). Subscriber retains copyright and any other proprietary rights that Subscriber may hold in the Subscriber Content. Any use of Subscriber Content by Giftbit will be without any compensation paid to Subscriber.
Subscriber Marketing Materials shall be expressly approved in advance by Subscriber, which approval shall not be unreasonably withheld, conditioned or delayed.
Last Updated: October 5, 2022
IF YOU ARE A TEAM USER, WE SHARE YOUR PERSONAL INFORMATION COLLECTED THROUGH THE APP WITH THE ADMINISTRATOR OF THE TEAM ACCOUNT THAT YOU CONNECT TO.
- If you are an individual user (“User”), information that we may provide to any administrator of a team account (“Team Account”) where the Giftbit platform is deployed (“Administrator”) and that you have authorized us to connect your account to. Administrator’s use of User’s information should be subject to a separate agreement between Administrator and User;
- information collected by us which is non-personally identifiable information, such as demographic statistics of our users (e.g. geolocation of our users), number of visitors, what pages users access or visit, and average time spent on the Website, business contact information or any personal information which has been anonymized; or
- information collected by any third party, including through any application or content (including advertising) that may link to or be accessible from or on the Site or App.
The Services are not intended for persons under 18 years of age and members of the Services must be 18 or older. We do not knowingly collect personal information from persons under 18. If you are under 18, do not use or provide any information on this Site or on or through any of its features/register on the Site or App, make any purchases through the Services, use any of the interactive or public comment features of the Services or provide any information about yourself to us, including your name, address, telephone number, email address or any screen name or user name you may use. If we learn we have collected or received personal information from a child under 18 without verification of parental consent, we will delete that information.
Information we collect about you and how we collect it
We collect several types of information from and about users of our Services, including information:
- by which you may be personally identified, such as name, workplace, postal address, email address, telephone number and any other identifier by which you may be contacted online or offline ("personal information");
- that is about you but on its own does not identify you; and/or
- About your Internet connection, wifi service, the equipment you use to access our Site or App (i.e. device data) and service usage details.
We collect this information:
- Directly from you when you provide it to us;
- Automatically through the settings that you have enabled on the App; information collected automatically through the App may include usage details, IP addresses, and information collected through cookies and other tracking technologies;
- Automatically as you navigate through the site; information collected automatically through the site may include usage details, IP addresses, and information collected through cookies and other tracking technologies;
Information you provide to us
The information we collect on or through the Services may include:
- Information that you provide by filling in forms on our Site, API, or App. This includes information provided at the time of registering to use our Site or App, subscribing to our service, posting material or requesting further services. We may also ask you for information when you enter a contest or promotion sponsored by us and when you report a problem with our Site or App.
- Records and copies of your correspondence (including email addresses), if you contact us or if you contact others through the Services (such as through our check-in or messaging functions).
- Details of transactions you carry out through our Site or App (including without limitation bookings, communications, orders and payments) and of the fulfillment of your orders. You may be required to provide financial information such as credit card details before placing an order through our Site or App (for example, through third party payment providers such as Stripe).
- Your search queries on the Site or App.
- Information you provide to us about other individuals
Information we collect through automatic data collection technologies
As you navigate through and interact with our Site or App, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions and patterns, geolocation and workplace usage patterns, including:
- Details of your visits to our Site or App and other communication data and the resources that you access and use on the Site or App.
- Information about your computer and Internet connection, including your IP address, operating system and browser type.
- We also may use these technologies to collect information about your online activities over time and across third-party websites or other online services (behavioural tracking).
- When you access and use the App, we may automatically collect certain details of your access to and use of the App, including traffic data, geolocation data, and other communication data and the resources that you access and use on or through the App.
- We may collect information about your mobile device and Internet connection, including the device's unique device identifier, IP address, operating system, browser type, mobile network information and the device's telephone number.
- Our App collects real-time information about the geolocation of your device.
We and our third party service providers may collect information about you in a variety of ways. We and/or our third party partners may employ various tracking technologies, such as cookies, web beacons and analytics software, that help us better manage content on our Service by informing us what content is effective.
When you visit our website or otherwise interact with the Service we (or third party data or ad networks we work with) may send one or more “cookies” to your computer or other devices. Cookies are alphanumeric identifiers stored on your computer
through your web browser and are used by most websites to help personalize your web experience. Some cookies may facilitate additional site features for enhanced performance and functionality such as remembering preferences, allowing social interactions, analyzing usage for site optimization, providing custom content, allowing third parties to provide social sharing tools, and serving images or videos from third party websites. Some features on this site will not function if you do not allow cookies. We may link the information we store in cookies to any Personal Information you submit while on our site.
Functional cookies, persistent and session type, store information to enable core site functionality.
Analytics cookies allow us to count page visits and traffic sources so we can measure and improve the performance of our site and our marketing campaigns.
Flash and HTML5 Storage
We use Local Shared Objects, such as Flash cookies, AND/OR Local Storage, such as HTML5, to store content information and preferences. Third parties with whom we partner to provide certain features on our website or to display advertising based upon your web browsing activity also use Flash cookies or HTML5 to collect and store information. Various browsers may offer their own management tools for removing HTML5.
We use this information to track and aggregate Other Information to analyze trends, administer the site, track users’ movements around the Service and to gather demographic information about our user base as a in the aggregate.
How we use your information
We will only use your personal information when the law allows us to. Most commonly, we will use your personal data in the following circumstances:
Where we need to perform the contract we are about to enter into or have entered into with you.
Where it is necessary for our legitimate interests (or those of a third party) and your interests and fundamental rights do not override those interests.
Where we need to comply with a legal or regulatory obligation.
See below to find out more about the types of lawful basis that we will rely on to process your personal data.
Generally we do not rely on consent as a legal basis for processing your personal information other than in relation to sending third party direct marketing communications to you via email or text message. You have the right to withdraw consent to marketing at any time by contacting us using the contact details set out below.
We have set out below, in a table format, a description of all the ways we plan to use your personal information, and which of the legal bases we rely on to do so. We have also identified what our legitimate interests are where appropriate.
Note that we may process your personal information for more than one lawful ground depending on the specific purpose for which we are using your information. Please contact us at firstname.lastname@example.org if you need details about the specific legal ground we are relying on to process your personal information where more than one ground has been set out in the table below.
|Purpose/Activity||Type of data||Lawful basis for processing including basis of legitimate interest|
|To register you as a new customer||(a) Identity
|Performance of a contract with you|
|To process and deliver your order including:(a) Manage payments, fees and charges
(b) Collect and recover money owed to us
(e) Marketing and Communications
|(a) Performance of a contract with you
(b) Necessary for our legitimate interests (to recover debts due to us)
|To manage our relationship with you which will include:
(b) Asking you to leave a review or take a survey
(d) Marketing and Communications
|(a) Performance of a contract with you
(b) Necessary to comply with a legal obligation
(c) Necessary for our legitimate interests (to keep our records updated and to study how customers use our services)
|To enable you to partake in a prize draw, competition or complete a survey||(a) Identity
(e) Marketing and Communications
|(a) Performance of a contract with you
(b) Necessary for our legitimate interests (to study how customers use our services, to develop them and grow our business)
|To administer and protect our business, Website, API and App (including troubleshooting, data analysis, testing, system maintenance, support, reporting and hosting of data)||(a) Identity
|(a) Necessary for our legitimate interests (for running our business, provision of administration and IT services, network security, to prevent fraud and in the context of a business reorganization or group restructuring exercise)
(b) Necessary to comply with a legal obligation
|To deliver relevant website content and notifications to you and measure or understand the effectiveness of the notifications that we serve to you||(a) Identity
(e) Marketing and Communications
|Necessary for our legitimate interests (to study how customers use our services, to develop them, to grow our business and to inform our marketing strategy)|
|To use data analytics to improve our website, services, marketing, customer relationships and experiences||(a) Technical
|Necessary for our legitimate interests (to define types of customers for our services, to keep our Website and App updated and relevant, to develop our business and to inform our marketing strategy)|
|To make suggestions and recommendations to you about new features and services that may be of interest to you||(a) Identity
|Necessary for our legitimate interests (to develop our services and grow our business|
|To register your presence in a Workplace||(a) Identity
|(a) Performance of a contract with you
(b) Necessary to comply with a legal obligation
We may also use your information to contact you about our own features, goods and services that may be of interest to you. If you do not want us to use your information in this way, please unsubscribe from these notifications in your account profile or using the unsubscribe links in the emails we send.
Legitimate Interest means the interest of our business in conducting and managing our business to enable us to give you the best service and the best and most secure experience. We make sure we consider and balance any potential impact on you (both positive and negative) and your rights before we process your personal information for our legitimate interests. We do not use your personal information for activities where our interests are overridden by the impact on you (unless we have your consent or are otherwise required or permitted to by law). You can obtain further information about how we assess our legitimate interests against any potential impact on you in respect of specific activities by contacting us at email@example.com.
Performance of Contract means processing your information where it is necessary for the performance of a contract to which you are a party or to take steps at your request before entering into such a contract.
Comply with a legal or regulatory obligation means processing your personal information where it is necessary for compliance with a legal or regulatory obligation that we are subject to.
Disclosure of your information
We may disclose aggregated information about our users without restriction.
- If you are a User, to Administrators of the Team Account or Workplaces where you are registered;
- To our subsidiaries and affiliates.
- To contractors, service providers, and other third parties we use to support our business solely for the purpose of them providing services to us.
- To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Giftbit Inc. and/or Giftbit, Corp.’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by the company about our Site or App users is among the assets transferred.
- To fulfill the purpose for which you provide it.
- For any other purpose disclosed by us when you provide the information.
We may also disclose your personal information:
- To comply with any court order, law or legal process, including to respond to any government or regulatory request.
- To enforce or apply our terms of service (https://www.giftbit.com/terms-and-privacy/) and other agreements, including for billing and collection purposes.
- If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of Giftbit Inc. and/or Giftbit, Corp., our customers, or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Transfers of data
Choices about how we use and disclose your information
We strive to provide you with choices regarding the personal information you provide to us. We have created mechanisms to provide you with the following control over your information:
- Tracking Technologies and Advertising.
- Promotional Offers.
If you do not wish to have your contact information used by us to promote our own or third parties' products or services, you can opt-out by sending us an email stating your request to firstname.lastname@example.org or by following the opt-out instructions in any promotional communication we send to you. If we have sent you a promotional email, you may send us a return email asking to be omitted from future email distributions.
Transfers of data
You can review and change your personal information by logging into the Site or App and visiting your account profile page.
You may also send us an email at email@example.com to request access to, correct or delete any personal information that you have provided to us. We may not be able to delete your personal information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.
Safety and security
As a PCI-compliant service and GDPR-compliant processor of your data, we use commercially reasonable efforts to store and maintain your Personal Information in a secure environment. We take technical, contractual, administrative, and physical
security steps designed to protect Personal Information that you provide to us. We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. All information you provide to us is stored on our secure servers. Any payment transactions will be encrypted using 2048 bits SSL Encryption.
The safety and security of your information also depends on you. You have chosen a password for access to certain parts of our Site or App, you are responsible for keeping this password confidential. We ask you not to share your password with anyone. In addition to passwords, we support two-factor authentication. We strongly advise you, and your team administrator, to enable two-factor authentication on your account.
Unfortunately, the transmission of information via the Internet and mobile platforms is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Site or App. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Site or App.
Your legal rights
Under certain circumstances, you have rights under data protection laws in relation to your personal information. You may have the right to:
- Request access to your personal information (commonly known as a "data subject access request"). This enables you to receive a copy of the personal information we hold about you and to check that we are lawfully processing it.
- Request correction of the personal information that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected, though we may need to verify the accuracy of the new information you provide to us.
- Request erasure of your personal information. This enables you to ask us to delete or remove personal information where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal information where you have successfully exercised your right to object to processing (see below), where we may have processed your information unlawfully or where we are required to erase your personal information to comply with local law. Note, however, that we may not always be able to comply with your request of erasure for specific legal reasons which will be notified to you, if applicable, at the time of your request
- Object to processing of your personal information where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground as you feel it impacts on your fundamental rights and freedoms. You also have the right to object where we are processing your personal information for direct marketing purposes. In some cases, we may demonstrate that we have compelling legitimate grounds to process your information which override your rights and freedoms. Request restriction of processing of your personal information. This enables you to ask us to suspend the processing of your personal information in the following scenarios: (a) if you want us to establish the information's accuracy; (b) where our use of the information is unlawful but you do not want us to erase it; (c) where you need us to hold the information even if we no longer require it as you need it to establish, exercise or defend legal claims; or (d) you have objected to our use of your information but we need to verify whether we have overriding legitimate grounds to use it.
- Request restriction of processing of your personal information. This enables you to ask us to suspend the processing of your personal information in the following scenarios: (a) if you want us to establish the information's accuracy; (b) where our use of the information is unlawful but you do not want us to erase it; (c) where you need us to hold the information even if we no longer require it as you need it to establish, exercise or defend legal claims; or (d) you have objected to our use of your information but we need to verify whether we have overriding legitimate grounds to use it.
- Request the transfer of your personal information to you or to a third party. We will provide to you, or a third party you have chosen, your personal information in a structured, commonly used, machine-readable format. Note that this right only applies to automated information which you initially provided consent for us to use or where we used the information to perform a contract with you.
- Withdraw consent at any time where we are relying on consent to process your personal information. However, this will not affect the lawfulness of any processing carried out before you withdraw your consent. If you withdraw your consent, we may not be able to provide certain services to you. We will advise you if this is the case at the time you withdraw your consent.
Contact information and requests
You will not have to pay a fee to access your personal information (or to exercise any of the other rights). However, we may charge a reasonable fee if your request is
clearly unfounded, repetitive or excessive. Alternatively, we may refuse to comply with your request in these circumstances.
We may need to request specific information from you to help us confirm your identity and ensure your right to access your personal information (or to exercise any of your other rights). This is a security measure to ensure that personal information is not disclosed to any person who has no right to receive it. We may also contact you to ask you for further information in relation to your request to speed up our response.
We try to respond to all legitimate requests within one month. Occasionally it may take us longer than a month if your request is particularly complex or you have made a number of requests. In this case, we will notify you and keep you updated.
Last Updated: June 9, 2022