In this Agreement, "Treatwallet" and "we" mean Treatwallet, dba eGiftify, and "User" and "you" mean any user of the Services. This Agreement incorporates Treatwallet's standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the "Treatwallet, dba eGiftify Policies").
By accessing or using the Services or clicking "accept" or "agree" to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, giving, using, or redeeming any eGiftify Gift Card or Merchant Gift Card (as defined below).
Treatwallet may update or revise this Agreement (including any Treatwallet Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click "accept" or "agree" to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Treatwallet, any use of the Services (e.g., the use of the Marketing, Promo, Offers or Ticketing services or the purchase of an eGiftify ((or Merchant) Gift Card) is subject to the version of this Agreement in effect at the time of use and bound by the terms of the signed contract agreement.
1.1 Gift Card Services
b) Lost or Stolen Merchant Gift Cards. Treatwallet, dba eGiftify is not responsible for any Merchant Gift Cards used without your permission or for any lost or stolen Merchant Gift Cards. You may, in your sole discretion, cancel and replace a lost or stolen Merchant Gift Card (if it has not already been redeemed) with a new Merchant Gift Card if it has been provided via the eGiftify Site or eGiftify Application, the email address to which the original eGiftify Gift Card (or Merchant Gift Card) was sent.
c) Merchant Responsibility. You agree that you (the applicable Merchant), not eGiftify is the issuer of the Merchant Gift Cards and is solely responsible for honoring the Merchant Gift Cards and that eGiftify acts only as a processor of the Merchant Gift Cards. eGiftify provides the Services and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Merchants or Merchant Gift Cards. Each applicable Merchant is solely responsible for the products and/or services provided in connection with the use or redemption of a Merchant Gift Card. You agree that the sale (and purchase of the gift card by the consumer) of Merchant Gift Cards is at your own risk and shall not hold eGiftify, any of its affiliates, or any of their respective employees, officers, directors, agents, representatives, or service providers responsible for any act or omission of any merchant. Each Merchant is responsible for ensuring that it and the Merchant Gift Cards that it issues comply with all applicable laws and regulations. You further agree that eGiftify is not responsible for any act or omission of Merchant in connection with the any Merchant Gift Card, including, without limitation, any failure by any Merchant to honor any Merchant Gift Card or the imposition of any terms and conditions on any Merchant Gift Card that violate any applicable laws or regulations. For any and all issues or questions related to Merchant Gift Cards or any other products or services offered by Merchants, consumers must contact the applicable Merchant. You (applicable Merchant) must settle any returns, disputes, and any other issues relating to Merchant Gift Cards directly with the consumer.
2.1 Terms for Services
a) Your Account. You must create an account with Treatwallet, dba eGiftify through the eGiftify Site or eGiftify Application ("Account") in order to use the Services or to purchase, gift, or redeem (as applicable) Merchant Gift Cards through the eGiftify Site and eGiftify Application. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the eGiftify sign-up and on-boarding form. You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify eGiftify of any unauthorized use of your Account or any other breach of security related to your use of the Services.
a) Fee Schedule. Once you have completed any applicable billing period or exceeded any limits described on the applicable fee schedule (the "Fee Schedule"), you will be subject to fees in accordance with any applicable Fee Schedule. Applicable fees will be billed monthly or your pre-paid account will be debited monthly for the Services, even if you are not actively using the Services. The applicable Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your account. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the applicable Fee Schedule, but you are responsible for reviewing the applicable Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts. You acknowledge and agree that our measurements are the definitive measurements for payment due and owed hereunder.
b) Other Billing Arrangements. If you receive the Services by means of one of our resellers or partners (a "Reseller"), the Reseller may be responsible for billing you for the Services and you may be subject to a different fee schedule and additional terms and conditions. You are responsible for reviewing your fee schedule and any additional terms and conditions. In the event of any conflict between this Agreement and the Reseller's terms and conditions, this Agreement shall control except with respect to the payment provisions set forth in this Section. If you cease to be a customer of a Reseller, any special pricing, benefits or terms may no longer be available to you. We may rely on information provided by the Reseller, if any, with respect to the status of your eGiftify Account.
c) Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.
Access and Use of the Site and the Services.
4.1. Prohibition on Spam; Permission Practices; Message Requirements.
You are responsible for ensuring that your use of the Site and the Services do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Site and the Services if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Services or file a spam report against you.
You agree to import, access or otherwise use only contact lists in connection with the Site and the Services for which all listed parties have consented to receive correspondence from you (such as by opting into your "Join Us Mailing List" link) and in adherence to GDPR guidelines and regulations. It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks "Like" on your Facebook page, or "follows" you on Twitter. If you have used our feature that allows you to request a recipient to confirm that you have the recipient's permission to send messages to such recipient (assuming such use is permitted by laws applicable to you), and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient. You agree not to send messages through the Site or the Services to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network.
b) Messages. In your use of the Site or the Services, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.
You agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act" and within GDPR guidelines)) of any message sent by you using the Site or the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Site or the Products (within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23 ("Canada's Anti-Spam Legislation")).
You agree that for any email message sent by you using the Site or the Services, (i) the "from" line of any email message sent by you using the Site or the Products will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the "subject" line of any email message sent by you using the Site or the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.
You agree that you shall not utilize the Site or the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a "commercial electronic mail message" as defined in the CAN- SPAM Act or Canada's Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting (in accordance with GDPR guidelines).
4.2 Compliance with Laws
The Site and the Products shall only be used for lawful purposes and you shall use the Site and the Services only in compliance with this Agreement and all other applicable U.S., state, local and international laws in your jurisdiction, including:
4.3. Restrictions on Use.
We prohibit the use of the Site or the Services by any person or organization that violates ourProhibited Content and Commerce Statement. You further agree to comply with the following in connection with your use of the Site and the Services:
4.4. Limitations on Use.
You understand that not all messages or campaigns sent through use of the Site or the Services will be received by or will be capable of being viewed by their intended recipients or will be viewable by your recipients in the same way they appear in our product environment. You further understand that delivery of messages by means of the Site or the Services may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
You agree that we may establish general practices and limits concerning use of the Site or the Services, including the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Site or the Services. We reserve the right to modify, revise, suspend or discontinue any Service in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Services in any manner. If we discontinue any Service in its entirety that you are using, we will provide you with advance notice and an opportunity to cancel your account.
4.5 Subscriber Privacy.
b) Sensitive Information. You will not import or incorporate into any contact lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.
4.6 Your Products and Services
Among other things, the Services permit you to (i) communicate about or administer contests, competitions, sweepstakes, or other similar promotional events ("Promotions"); (ii) sell your products and services and tickets to your events to your subscribers and others in the form of various promotional deals, coupons, tickets, vouchers, passes or cards (each, a "Offer or Ticketing"); (iii) collect donations (each, a "Donation Campaign"); and (iv) provide physical and digital gift cards (each, a "Gift")
You are solely responsible for your products and services, events, Promotions, Offers and Ticketing, Donation Campaigns and Gifts, including any and all injuries, illnesses, damages, claims, liabilities and costs suffered in respect thereto. You shall bear all costs of procuring and delivering your products and services, Promotions (including any prizes offered), Offers, Ticketing, running your events, Donation Campaigns, and Gifts, including any associated shipping, taxes and any other fees associated therewith. You hold all necessary governmental and third party licenses, approvals, authorizations and registrations necessary to offer your products and services, Promotions, Offers, Ticketing, Gifts, and run your events and Donation Campaigns, if any.
You agree to provide your products and services, Promotions, Offers, Ticketing, Gifts, and run your events and Donation Campaigns in a safe and professional manner, consistent with industry best practices, including keeping reliable records.
You will be solely responsible for any and all statements and promises you make and for all user assistance, warranty and support of your products and services, Promotions, Offers, Ticketing, Gifts, events and Donation Campaigns and to comply with any promises you make to your customers, users, donors and donees. You further agree to provide contact information for any end-user questions, complaints or claims. You agree that your Promotions, Offers, Ticketing, and Gifts will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, this Agreement and your own requirements (the "Offer Terms") and you agree to comply with the same. Any such Offer Terms must be presented to prospective purchasers before they commit to make a payment or take any other action and must include any terms provided by us. If you use the Site or the Services to offer a Promotion, you are further responsible for ensuring that you comply with applicable law relating to eligibility requirements (for example, age and residency restrictions), the selection of winners and all prizes offered in connection with the Promotion (for example, registration and obtaining necessary regulatory approvals) and that your Offer Terms include the foregoing to the extent applicable. You shall ensure that the rules for each Promotion (i) state that each entrant or participant unconditionally releases us of any liability arising from the Promotion, and (ii) inform each entrant or participant that the Promotion is in no way sponsored, endorsed or administered by, or associated with, us.
For every listing, message or campaign sent or distributed via the Services, you agree that we may add a link to our Site relating to options to "Unsubscribe" for GDPR regulatory reasons and/or a statement such as "Email Marketing by eGiftify" or "Powered by eGiftify" in the footer or other similar location that does not unreasonably obscure the message or campaign.
5.1 Communities and Marketplace
The Site may contain areas where you are be able to participate in the eGiftify Marketplace where products and merchant offers are available to consumers who access the eGiftify website. If you have selected to participate in the eGiftify Marketplace by signing the "Marketplace Agreement" addendum, you agree that you are responsible for your own terms and conditions of the offers you make and for any consequences thereof. Any offers you make available may be accessible to anyone with Internet access.
You agree that all Marketplace Offers are in compliance with all applicable laws and this Agreement. You further agree to abide by the eGiftify Community Terms & Condition of Use with respect to your use of the eGiftify Community and the eGiftify Marketplace Terms & Condition of Use with respect to your use of the eGiftify Marketplace. In the event that you violate any provision of the eGiftify Community Terms and Conditions of Use or the eGiftify Marketplace Terms and Conditions of Use, in our sole discretion, we reserve the right to terminate your access to or use of the Site or the Services, disable your eGiftify account or access to the Site or the Services, and remove all or a portion of your content, in each case, with or without cause, with or without notice and without refund.
Many of the products and services being promoted by means of the Communities and Marketplace are offered by and are the sole responsibility of the entity that made such offers. We do not endorse and are not responsible for (i) any third party products or services marketed or made available through the Communities, or (ii) any purchase or other transaction resulting from or associated with your use of the Communities.
6. Additional Restrictions and Responsibilities
6.1 No Rights in Software
This is an Agreement for services and access to the Site, and, except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Site or the Products or any software, documentation, or data related to the Site or the Products ("Software"); remove any proprietary notices or labels from the Site or the Products or any Software; modify, translate, or create derivative works based on the Site or the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or the Products or any Software. If you are using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, the Software or the Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (a) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (b) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (c) to provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
6.2 Monitoring and Removal
Although we have no obligation to monitor the content provided by you or your use of the Site or the Services, we may do so and may block any messages or campaigns, remove any content, including surveys, event registrations, social campaigns, Promotions, Offers, Ticketing, Gifts or Business Content, or prohibit any use of the Site or the Services that we believe may be in violation of the foregoing or any other provision of this Agreement. You further understand and agree that we and any applicable third party who supports, posts, publishes or distributes your Promotions, Offers, Ticketing, Gifts or Business Content also has the right to reformat, edit, monitor, reject, block or remove any of your Promotions, Offers, Ticketing, Gifts or Business Content at any time. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable.
You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law, including any sample Offer Terms. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. We do not warrant or guarantee that use of or compliance with this information will be sufficient to comply with your obligations hereunder, applicable law or with third party rights.
6.4 Your Information and Content
a) Your Information. In using the varied features of the Site or the Services, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us and we may collect information about your use of the Site or the Services. We may use this information in accordance with ourPrivacy Statement and relevant "just-in-time" notices, if any, provided at the point of information collection or use.
b) Your Content and Contacts. We will also obtain any information that you provide to us in connection with your use of the Site or the Services, such as contact lists (including email addresses and phone numbers of your subscribers) and content (including Business Content). Treat Wallet, Inc serves as the data processor and as such, we acknowledge your ownership rights in such contact lists. As more fully described in our Privacy Statement, we will never sell or rent your contact lists to anyone without your permission. You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display your contacts and content (other than the Business Content) only as required by us to offer and operate the Services and related services and as described in our Privacy Statement.
You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement and in accordance to any and all laws, including GDPR requirements. To the extent you use images or templates provided by us, we hereby grant to you a revocable, non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, perform and display the images solely in connection with your use of the Site or the Services.
c) Submissions. If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Site or otherwise ("Submissions"), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.
d) Backups. You are responsible for making frequent backup copies of your contacts and content.
You may terminate your Treatwallet, dba eGiftify account at any time by calling eGiftify Customer Support. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR eGIFTIFY ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR eGIFTIFY ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR eGIFTIFY ACCOUNT AND THIS AGREEMENT.
We may, in our sole discretion, terminate your eGiftify account or your access to or use of the Site or the Services, disable your eGiftify account or access to the Site or the Services, remove all or a portion of your contacts and content, cancel or suspend any of your events, Promotions or Offers or Ticketing or Gifts or Donation Campaigns, or put your eGiftify account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall process all unsubscribe requests from your last email campaign immediately or as soon as reasonably possible and in accordance with any unsubscribe request laws. Under the CAN-SPAM Act and Canada's Anti-Spam Legislation, and GDPR you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of this Agreement.
Upon termination of your eGiftify account by you or us, this Agreement and any rights or licenses granted to you hereunder shall immediately terminate except that (a) all sections of this Agreement that by their nature should survive termination will survive termination, and (b) for the avoidance of doubt, you will continue to be responsible for redemption of coupons and fulfillment for Promotions and Offers run prior to such termination in accordance herewith and any promises you made with respect to the funds associated with any Donation Campaigns.
You hereby agree to defend, indemnify and hold harmless us, our affiliates and our underlying service providers (i.e. vendors who help us provide the Services), business partners, third-party suppliers and providers, members of our Network, account providers, licensors, distributors and agents and our and their respective officers, directors, employees, distributors and agents from and against any claims, damages, suits, actions, demands, proceedings (whether legal or administrative), losses, liabilities, penalties, settlements and expenses (including costs and reasonable attorneys' fees) in connection with any claim or action that (a) arises from any actual or alleged breach by you of this Agreement; (b) arises from your contacts and content, including the content or effects of any messages you distribute, events you host, surveys you administer, social media campaigns you publish, Promotions or Offers or Ticketing or Gifts you offer, donations you collect or products or services you sell (including claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, breach of Offer Terms, defective products or services or unclaimed property); (c) arises from your provision of incomplete or inaccurate information to your subscribers or customers; (d) arises from your activities or postings in any Community; (e) arises from your use of any Third Party Service (as defined below); (f) arises from your activities related to the eGiftify programs; or (g) otherwise arises from or relates to your use of the Site or the Services. You agree to provide us with prompt written notice in the event of any such claims or actions. In addition, you acknowledge and agree that we have the right to seek damages when you use the Site or the Services for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Services, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
9.1 Warranty Disclaimer; Remedies; Release
YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICES (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE OR THE SERVICES AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS. TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
10.1 Limitation of Liability
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF eGIFTIFY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL eGIFTIFY OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF OUR NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "eGIFTIFY") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF eGIFTIFY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, THE MAXIMUM AGGREGATE LIABILITY OF eGIFTIFY TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CONSTANT CONTACT TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that eGiftify has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
11.1 Restricted Persons; Export of the Site, the Services or Technical Data
The Services are subject to export control and economic sanctions laws and regulations administered or enforced by the United States Department of Commerce, Department of Treasury's Office of Foreign Assets Control ("OFAC"), Department of State, and other United States authorities (collectively, "U.S. Trade Laws"). You may not use the Products to export or reexport, or permit the export or reexport, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent and warrant that you are not (a) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (including Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (b) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (c) otherwise a prohibited party under U.S. Trade Laws; or (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license. Unless otherwise provided with explicit written permission, eGiftify also does not register, and prohibits the use of any of our Services in connection with, any Country-Code Top Level Domain Name ("ccTLD") for any country or territory that is the target of OFAC sanctions. The obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
12.1 Third-Party Websites and Services
The Site and the Services include social media tools that may, among other things, allow you to manage access, post content and manage content on social network platforms (for example, LinkedIn and Facebook). These tools also allow you to use the Services to access and analyze information found on social media sites. You hereby grant us all required permissions to access such sites and provide this functionality.
You agree to abide by the terms and conditions of any applicable Third Party Service (including Facebook, Paypal and Apple). Notwithstanding anything set forth herein to the contrary, you will abide by this Agreement regardless of anything to the contrary in your agreement with any third party and you shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
We may terminate any Third Party Service's ability to interact with the Site or any of the Services at any time, with or without notice, and in our sole discretion, with no liability to you or to any third party. Any Third Party Service may take actions to impact our ability to make available some or all of the features of the Site or the Services at any time, with or without notice, and we will not be liable to you or to any third party for any such actions. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Third Party Services.
In no event shall any reference to any third party or third party product or Third Party Service be construed as an approval or endorsement by us of that third party or of any product or service provided by such third party. If you use the Services to collect payments (including registration for events, Promotions, Offers, Ticketing, Gifts, Digital Rewards, donations or products or services), you are responsible for the collection and administration of such payments and compliance with all applicable laws relating thereto, including all applicable domestic or international local, state or federal tax requirements. You are responsible for any refunds associated with any payments.
a) Merchant has full liability and responsibility for all Chargebacks. Reasons for a Chargeback include, but are not limited to (i) the Transaction Data was prepared incorrectly or fraudulently (ii) Merchant did not obtain proper authorization, or did not provide a correct and legible authorization code on the Transaction Data, (iii) the Customer disputes participating in or approving the Transaction, (iv) the Customer alleges that return of goods was improperly refused or that a refund was not processed for the Customer, (v) the Customer has asserted what the Customer believes is a good faith claim or defense against the Transaction, or (vi) the Payment Instrument was not actually presented at the time of the Transaction and the Customer denies making the purchase.
b) If Merchant has a reason to dispute or respond to a Chargeback, then Merchant must do so by the date provided on the applicable Chargeback Notice. Processor will not investigate or attempt to obtain a reversal or other adjustment to any Chargeback if Merchant has not timely responded to the notice.
c) If Processor determines that Merchant is receiving excessive Chargebacks (as determined by reference to applicable Rules and Bank policy), Processor may, but are not obligated to, (i) notify Merchant of new procedures it should adopt, (ii) increase or add additional Processing Fees imposed for processing Chargebacks, (iii) establish or increase the amount held in any Reserve Account, and/or (iv) terminate this Merchant Agreement, at Processor's discretion, without advance notice. Merchant must immediately pay any fines or fees imposed by a Payment Brand or Processor relating to Chargebacks to Merchant.
d) Each Chargeback to Merchant is immediately due and payable by Merchant. Without limiting Processor's other remedies or Processor's security interest described in this Merchant Agreement, Processor may deduct, debit and withhold the amount of a Chargeback or anticipated Chargeback, plus a service fee of $15 per chargeback, from the Settlement Account, Reserve Account, or any Merchant account at Bank.
e) In order to comply with Retrieval Requests, Merchant shall store and retain Transaction Data in compliance with the Rules, including any time frames set forth therein. Within 7 days (or such shorter time as the Rules may require) of Processor sending Merchant a Retrieval Request, Merchant must provide to Processor (i) written resolution of Merchant's investigation of such Retrieval Request, and (ii) legible copies of any supporting documentation requested or required by the Retrieval Request. Merchant acknowledges that failure to fulfill a Retrieval Request timely and in accordance with the Rules may result in an irreversible Chargeback.
f) To the extent that Processor has paid or may pay a Chargeback or return, Merchant will be obligated to reimburse Processor for any sums Processor pay. If Merchant does not reimburse Processor, Processor will have all of the rights and remedies of Customers under law and may assert any claim on behalf of a Customer individually or on behalf of all Customers as a class.
14.1 Notice and Take Down Procedures; Copyright Agent
If you believe any materials accessible on or from the Site or the Services infringe your copyright or other intellectual property, you may request removal of those materials (or access thereto) from the Site or the Services by contacting our copyright agent (identified below) and providing the following information:
a) Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (for example, the URL) of an authorized version of the work.
b) Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
c) Any information required to be included in a copyright infringement report under the United Kingdom Digital Economy Act 2010 (as we shall notify to you from time to time and request from you as necessary).
d) Your name, address, telephone number and (if available) email address.
e) A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
f) A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
g) A signature or the electronic equivalent from the copyright holder or authorized representative.
15.1 UK Site Visitors and Customers
If you are accessing the Site or purchasing any Products from the UK, Sections 8, 9 and 10 of this Agreement will not apply to you as set out above, but will be replaced in their entirety with the following wording:
You hereby agree to defend, indemnify and hold harmless us, our affiliates and our underlying service providers, (i.e. vendors who help us provide the Services) or suppliers business partners, members of our Network, account providers, licensors, distributors and agents and us and their respective officers, directors, employees, distributors and agents from and against any claims, damages, suits, actions, demands, proceedings (whether legal or administrative) losses, liabilities, penalties, settlements and expenses (including costs and reasonable legal fees) in connection with any claim or action that (a) arises from a breach by you of any of the following Sections of this Agreement (b) arises from a breach by you of the Anti-Spam Policy or Privacy Statement or of your obligations as a data controller under EU GDPR law; (c) arises from your contacts and content, including the content or effects of any messages you distribute, events you host, surveys you administer, social media campaigns you publish, Promotions or Offers or Ticketing or Gifts you offer, donations you collect or products or services you sell (including, claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, breach of Offer Terms, defective products or services or unclaimed property); (d) arises from your provision of incomplete or inaccurate information to your subscribers or customers; (e) arises from your activities or postings in any Community in breach of the terms of this Agreement; (f) arises from your use of any Third Party Service (as defined below), in breach of the terms of this Agreement or the terms of any agreement in place with the relevant Third Party Service; or (g) arises from your activities related to eGiftify programs in breach of the terms of this Agreement.
9. Warranty Disclaimer; Remedies; Release
YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICES (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE OR THE SERVICES AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY EXCLUDE ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS, AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES.
10. Limitation of Liability
EXCEPT WITH RESPECT TO FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF CONSTANT CONTACT, OR LIABILITY THAT MAY NOT OTHERWISE BE LIMITED OR EXCLUDED BY LAW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL CONSTANT CONTACT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS,MEMBERS OF OUR NETWORK, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "eGIFTIFY") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS, OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES, EVEN IF FORESEEABLE OR IF eGIFTIFY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, OTHER THAN WHERE CAUSED BY eGIFTIFY'S MATERIAL BREACH OF THIS AGREEMENT, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF eGIFTIFY TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY eGIFTIFY TO YOU IN THAT 12 MONTH PERIOD.
You agree that eGiftify has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties."
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