Giftbit is a service used by companies for incentive and rewards programs with customers, employees, and users. Giftbit is a digital service.
Subscriber must be at least eighteen (18) years of age to use the Giftbit Services. By agreeing to this Agreement, Subscriber represents and warrants to Giftbit: (i) that Subscriber is at least eighteen (18) years of age; (ii) that Subscriber has not previously been suspended or removed from the Giftbit Services; and (iii) that Subscriber’s registration and Subscriber’s use of the Giftbit Services is in compliance with any and all applicable laws and regulations. If you are using the Giftbit Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this Agreement and you agree to be bound by this Agreement on behalf of such organization, which is the Subscriber under this Agreement.
3.1 “Documentation” means Giftbit-provided user documentation, in all forms, relating to the Giftbit Services (e.g., user manuals, on-line help files).
3.2 “Gift Card” means a digital gift card that is purchased by Subscriber via the Giftbit Services and can be redeemed to make purchases at a Merchant.
3.3 “Gift Sending Terms” means the additional terms and conditions governing the sending of Gift Cards located at [www.giftbit.com/giftterms], as may be updated by Giftbit from time to time.
3.4 “Giftbit Pricing Table” means Giftbit’s standard pricing table listing the fees and pricing for the different offerings of the Giftbit Services located at [www.giftbit.com/pricing], as may be updated by Giftbit from time to time, or an order form executed by both parties that specifies pricing applying to Subscriber’s use of the Giftbit Services.
3.5 “Giftbit Services” means Giftbit’s web-based digital gifting platform that enables the sending of customizable and trackable digital gift cards.
3.6 “Merchant” means a business that offers digital gift cards that can be purchased by Subscriber and sent to Recipients using the Giftbit Services.
3.7 “Order Form” means a Giftbit order form executed by both parties and specifying any additional terms and conditions applying to Subscriber’s use of the Giftbit Services.
3.8 “Recipient” means a recipient of one or more digital gift cards sent by Subscriber using the Giftbit Services.
3.9 “Service Level Agreement” means the Giftbit service level agreement executed by both parties and specifying any additional terms and conditions applying to Subcriber’s use of the Giftbit Services.
3.10 “Service Use Data” means any data or information other than Subscriber Data that is collected by Giftbit as a result of Subscriber’s access to or use of the Giftbit Services or any Recipient’s interactions with Gift Card offers.
3.11 “Subscriber Data” means any data or information provided by or on behalf of Subscriber to Giftbit or the Giftbit Services, in connection with Subscriber’s use of the Giftbit Services.
Subject to the terms and conditions of this Agreement, Giftbit grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to use the Giftbit Services solely to send and manage Gift Cards to Recipients.
Subject to the terms and conditions of this Agreement, Giftbit grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Giftbit Services in accordance with this Agreement.
Subject to the terms and conditions of this Agreement, Giftbit will provide Subscriber with remote access to the Giftbit Services in accordance with the Service Level Agreement. For so long as Subscriber is current with its payment of all fees required under this Agreement, Giftbit will use reasonable efforts to provide Subscriber with the technical support services described in the Service Level Agreement by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Giftbit Services; (b) rent, lease, or otherwise permit third parties to use the Giftbit Services or Documentation; (c) use the Giftbit Services to provide services to third parties (e.g., as a service bureau); nor (d) circumvent or disable any security or other technological features or measures of the Giftbit Services.
Subscriber will use the Giftbit Services and Documentation in compliance with the Gift Sending Terms and all applicable laws and regulations.
Certain features of the Giftbit Services may permit Subscriber to upload content, including messages, photos, video, images, folders, data, text, and other types of works (collectively, “Subscriber Content”) and to publish Subscriber Content through the Giftbit Services. Subscriber retains copyright and any other proprietary rights that Subscriber may hold in the Subscriber Content. Subscriber grants Giftbit a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute the Subscriber Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any use of the Subscriber Content by Giftbit will be without any compensation paid to Subscriber. Subscriber is solely responsible for Subscriber Content and the consequences of posting or publishing Subscriber Content. By posting or publishing Subscriber Content, Subscriber represents and warrants that (a) Subscriber is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize Giftbit to use and distribute the Subscriber Content as necessary to exercise the licenses granted by Subscriber in this Section 3.6 and in the manner contemplated by Giftbit and this Agreement; and (b) the Subscriber Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
Giftbit is under no obligation to edit or control Subscriber Content that Subscriber or other users post or publish, and will not be in any way responsible or liable for Subscriber Content. Giftbit may, however, at any time and without prior notice, screen, remove, edit, or block any Subscriber Content that in Giftbit’s sole judgment violates this Agreement or is otherwise objectionable. Subscriber understands that when using the Giftbit Services Subscriber may be exposed to Subscriber Content from a variety of sources and acknowledge that Subscriber Content may be inaccurate, offensive, indecent or objectionable. Subscriber agrees to waive, and hereby does waive, any legal or equitable rights or remedies Subscriber have or may have against Giftbit with respect to Subscriber Content. Giftbit expressly disclaims any and all liability in connection with Subscriber Content. If notified by a user or content owner that Subscriber Content allegedly does not conform to this Agreement, Giftbit may investigate the allegation and determine in its sole discretion whether to remove the Subscriber Content, which Giftbit reserves the right to do at any time and without notice. For clarity, Giftbit does not permit copyright-infringing activities on the Giftbit Services.
Subscriber will use reasonable efforts to prevent any unauthorized use of the Giftbit Services and Documentation and immediately notify Giftbit in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Giftbit Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Giftbit to prevent or terminate unauthorized use of the Giftbit Services or Documentation.
BY USING THE GIFTBIT SERVICES, SUBSCRIBER AGREES NOT TO:
(a) use the Giftbit Services for any illegal purpose, or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
(c) post, upload, or distribute any Subscriber Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(d) interfere with security-related features of the Giftbit Services, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Giftbit Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;
(e) interfere with the operation of the Giftbit Services or any user’s enjoyment of the Giftbit Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Giftbit Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Giftbit Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
(f) perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Giftbit Services accounts of others without permission, or falsifying Subscriber’s age or date of birth;
(g) sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or
attempt to do any of the foregoing in this Section 7, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 7.
Giftbit may provide tools through the Giftbit Services that enable Subscriber to export information, including Subscriber Content, to third party services, including through features that allow Subscriber to link the Subscriber Account with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, Subscriber agrees that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of Subscriber’s exported information. The Giftbit Services may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
The Giftbit Services are owned and operated by Giftbit. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Giftbit Services (the “Materials”) provided by Giftbit are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Giftbit Services are the property of Giftbit or its third-party licensors. Except as expressly authorized by Giftbit, Subscriber may not make use of the Materials. Giftbit reserves all rights to the Materials not granted expressly in this Agreement.
Giftbit grants to Subscriber a limited right to use the Giftbit Services and Documentation under this Agreement. Giftbit reserves to itself all rights to the Giftbit Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.
If Subscriber provides any feedback to Giftbit concerning the functionality or performance of the Giftbit Services (including identifying potential errors or improvements), Subscriber hereby grants to Giftbit a perpetual, irrevocable, non-exclusive, transferrable, royalty-free, worldwide license (with right to grant sublicenses through multiple tiers) in and to the feedback, and Giftbit is free to use the feedback without payment or restriction.
Subscriber agrees and acknowledges that each Gift Card sent via the Giftbit Services is subject to additional terms and conditions issued by the applicable Merchant. In the event of a conflict between the terms of this Agreement and the Merchant terms governing a Gift Card, the Merchant terms will prevail solely with respect to the purchase, issuance, redemption, and other use or exploitation of the Gift Card. Subscriber is solely responsible for reviewing any and all applicable Merchant terms prior to purchasing the Gift Cards from the Merchant.
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: email@example.comAny 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.
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.
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.
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. Subscriber must have an Account Balance in excess of any desired purchase amounts in order to make the purchase.
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. This includes a monthly fee of $9.95 (nine dollars and ninety-five cents) (“Account Inactivity Fee”) that Giftbit will charge to the Subscriber Account after any 6 (six) month period in which no purchases of Gift Cards are made using the Subscriber Account; and a one-time "Account Deactivation Fee" of $90 + 3% (ninety dollars plus three percent) of a Subscriber’s available Account Balance when terminating the Subscriber Account as permitted in Section 7.2. 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.
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.
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.
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.
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.
If this Agreement is terminated for any reason, (a) Giftbit will refund the available Account Balance within 30 days of termination; (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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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).
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.
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.
(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.
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 firstname.lastname@example.org. 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.
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.
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.
Children under the age of 13 are not permitted to use Giftbit and we do not intentionally collect or maintain Personal Information from those who are under 13 years old. If we obtain actual knowledge that a user is under 13, we will take steps to remove that user’s Personal Information permanently from our databases. We recommend that children between the ages of 13 and 18 obtain their parent’s permission before submitting information over the Internet. By using Giftbit, you are representing that you are at least 18 years old, or that you are at least 13 years old and have a parent’s or legal guardian’s permission to use Giftbit.
In general we collect Personal Information about you from information you submit directly via the Website or the Services, such as your name, e-mail address, mailing address, age, and date of birth, and from any social networking service whose platform you have used in order to connect to Giftbit’s Services, in order to provide you with the Services, and to personalize and improve the Services. When you make a purchase through Giftbit, you will be required to submit your credit card or other payment information. All payments are subject to appropriate security and data protection measures. Additionally, we collect any information that you voluntarily enter, including Personal Information, into any postings, comments, or forums within the Giftbit community.
If you use or otherwise access our Services on your mobile telephone or other mobile device, we also collect your unique device identifier and may collect location information. We also may collect your telephone number and other information you choose to provide, such as username or e-mail address (e.g., to receive updates or important notifications from Giftbit).If you have activated any of Giftbit’s mobile applications and permitted your mobile or other location-aware device to transmit location data, we may collect mobile location information to provide you with nearby offers, merchant information, etc.
If you send an e-mail to us, or fill out our "Feedback" form through Giftbit, we will collect your e-mail address and the full content of your e-mail, including attached files, and other information you provide. We may use and display your full name and email address when you send an email notification to a friend through Giftbit or the social network from which you have connected to Giftbit (such as a gift, an invitation, or when sharing your content). Additionally, we may use your email address to contact you on behalf of your friends (such as when someone sends you a personal message) or notifications from a social network or other website with whom you have registered to receive such notifications. We may use this e-mail address to contact you, for things such as notifications of limited edition shop sales and other related information. You may indicate your preference to stop receiving further promotional communications as further detailed below.
Helping you to protect your information is a vital part of our business. It is up to you to make sure you are comfortable with the information you choose to provide us and the information you choose to publish either directly into Giftbit or through third party services like Facebook and Twitter. You understand that when you use Giftbit, certain information you post or provide through Giftbit, such as your name, profile, comments, collections and reviews, may be shared with other users and posted on publicly available portions of Giftbit, including without limitation, social media applications and other public forums in which you choose to participate. Please keep in mind that if you choose to disclose Personal Information when posting comments or other information or content through Giftbit, this information may become publicly available and may be collected and used by others, including people outside the Giftbit community. We will not have any obligations with respect to any information that you post to parts of Giftbit available to others, and recommend that you use caution when giving out personal information to others through social media networks or otherwise.
Giftbit permits users to send messages from their Account to third parties. If you send a message (eg. notifying a third party that you have sent them a gift card), we will retain the message sender and recipient data but we will not market to or use this information for any other purpose than providing the Services requested by you.
We recognize that the EU has an "omnibus" data protection regime established pursuant to the European Data Protection Directive (95/46/EC) (the "Directive") and that Switzerland established the Swiss Federal Act on Data Protection (the "Swiss Act"). The Directive and Swiss Act generally restrict the transfer of personally identifiable information about individuals in the EU or Switzerland to the United States, unless there is "adequate protection" for such information when it is received in the United States. To address these restrictions, we adhere to U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework with respect to personally identifiable information about candidates and potential candidates of our customers ("EU or Swiss Candidates") in the EU or Switzerland ("EU or Swiss Personal Information") for the purposes described below.
Giftbit may obtain in the US the following types of EU or Swiss Personal Information about EU or Swiss Candidates including: name; contact information (phone, fax and pager numbers, address, and email address); resume, employment history, references and other application data. Giftbit may use such EU or Swiss Personal Information for the purposes of providing recruiting and staffing services, and recruitment process outsourcing services to its customers located in the EU or Switzerland.
Giftbit will obtain access to information about EU or Swiss Candidates in connection with its provision of recruitment process outsourcing services to its customers in the EU or Switzerland ("EU or Swiss Processor Information"). Giftbit’s customers in the EU or Switzerland act as the data controller for all EU or Swiss Processor Information collected in the EU or Switzerland and subsequently transferred to Giftbit in the United States. Giftbit acts as a data processor on behalf of its customers with respect to all such EU or Swiss Processor Information obtained in connection with the provision of recruitment process outsourcing services and accordingly carries out their customers’ instructions with regard to the collection, processing, and protection of EU or Swiss Processor Information.
Giftbit takes reasonable precautions to protect EU or Swiss Personal Information from loss, misuse and unauthorized access, disclosure, alteration and destruction. Giftbit makes reasonable efforts to keep EU or Swiss Personal Information reliable for its intended use, accurate, current and complete.
Any questions regarding this Safe Harbor section of this privacy statement or requests for access to EU or Swiss Personal Information should be directed to the Safe Harbor Privacy Contact listed in this section. Additional information may be obtained on the US Department of Commerce web site at http://www.export.gov/safeharbor. In addition, if any individual located in the EU or Switzerland experiences an issue regarding the EU or Swiss Personal Information that Giftbit holds about him or her, the individual may contact the local data protection authority for further information.
You can help by keeping us informed of any changes such as a change of address or telephone number. If you would like to access your information, if you have any questions, comments or suggestions of if you find any errors in our information about you, please contact us at: email@example.com.
Last Updated: December 23, 2015