Treatwallet Inc., dba eGiftify site Terms of Use

In this Agreement between Treat Wallet Inc., dba eGiftify ("eGiftify"), and Merchant ("Merchant"), Merchant means any Merchant (or "User") utilizing the Services. This Agreement incorporates eGiftify'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 "eGiftify Policies").

These Terms of Use between the Merchant and eGiftify (this “Agreement”) apply to Merchant , Merchant's users and Merchant's Consumer's use of (1) the eGiftify website at https://www.eGiftify.com and all affiliated websites owned and operated by eGiftify, including Merchant and Consumer Web and Mobile Applications, SDKs, iFrames, Purchase Pages, Mobile Passes, Customer Relationship Management (CRM) System, Partner and Merchant Portals, and any other future eGiftify technology created, owned, and/or operated by eGiftify, along with any of its affiliates, contractors, subcontractors, partners, service providers and any third-party integrations (2) the Merchant Gift Cards, Offers, Marketing Promotions & CRM, Loyalty and Ticketing services made available by eGiftify through the eGiftify site, Partner Portal and Merchant Portal, any eGiftify-branded application for your mobile or other device, integrated SDKs, (collectively, the “eGiftify Application”), and any other online properties of eGiftify or third parties, (3) gift card purchases and related services provided by eGiftify as described below, (4) any current or future eGiftify application and/or technology, and (5) any other services or features made available through the eGiftify sites, Partner sites or systems, or any eGiftify application or technology. Together, the items in (1) through (5) along with any new products or services that eGiftify may incorporate are the "Services".

By accessing or using the Services or clicking "accept" or "agree" to this Agreement, (1) Merchant acknowledges that Merchant has read, understands, and agrees to be bound by this Agreement, and (2) Merchant represents and warrants that it is of legal age and not prohibited by law from accessing or using the Services (including, if applicable, purchasing, giving, using, or redeeming any Merchant Gift Card or eGiftify Gift Card if applicable (as defined below).

eGiftify may update or revise this Agreement (including any eGiftify Polices) from time to time. You agree that you will review this Agreement periodically or as notified of changes by eGiftify. Accepting this Agreement, as modified, is required for Merchant to continue using the Services. Merchant may have to click "accept" or "agree" to show its acceptance of any modified version of this Agreement. Except as otherwise expressly stated by eGiftify, 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.

Under the terms of this Agreement, eGiftify will make available some or all of its modules and /or services as agreed upon between Merchant and eGiftify or as agreed upon between Merchant and eGiftify's authorized Partners and Resellers via an application, online, mobile or written signup form, statement or work or implementation schedule or any other form of agreement in writing. eGiftify reserves the right to approve or deny any Merchant for any reason at any time. Merchant acknowledges and agrees that eGiftify may from time to time modify, expand, restrict, suspend, or terminate the Services or products that it offers to Merchant without obligation or liability to Merchant

• Products / Services Offered (general)
  • Gift Cards & Offers (Discounts/Values/Bogos). eGiftify provides Merchant the ability to sell its own digital and physical gift cards and gift card offers through the eGiftify "Services" as agreed upon between Merchant and eGiftify. For digital gift card and offer sales, eGiftify will deliver the Merchant's gift card to the designated recipient via sender's choice of available channels, which may include: SMS text message, email, available social media outlets and push notifications, if applicable. For physical gift cards sold online, Merchant or Reseller may select to have eGiftify fulfill and ship the gift cards sold online or Merchant or a contracted third-party may fulfill the physical gift cards sold online. In the event that eGiftify fulfills, Merchant will provide to eGiftify or Merchant will contract with eGiftify to provide the printed gift cards and mailing assets at Merchant's expense unless otherwise agreed upon. If Merchant or third-party is responsible for fulfilling and shipping the physical gift cards sold online via the eGiftify Services, eGiftify will notify the party appointed by Merchant or Reseller of the purchase either directly or via the eGiftify Merchant Portal of any online physical gift card purchases. eGiftify will have no responsibility for ensuring that the physical gift card order has been processed or shipped by the Merchant or Third-Party. It is Merchant's responsibility to provide tracking information, inventory control, security (including any PIN related security requirements) and customer support for any printing and shipping related questions. For physical gift cards sold onsite and loaded on the eGiftify Services, Merchant is responsible for loading/unloading, redeeming, distribution and securing of any card assets.
  • Marketing Promotions (Promotions) & Customer Relationship Management (CRM) Services. The eGiftify Marketing & CRM Services enable Merchants to send promotional gift cards, coupons, offers and discounts (Promos) to recipients through the eGiftify Merchant Portal individually or in bulk. It is the sole responsibility and liability of the Merchant to create, issue, approve, confirm, honor and redeem all promotional gift cards/offers and to clearly communicate any conditions or restrictions, including valid dates and expiration dates. Merchant is solely responsible to abide by any and all existing and future privacy laws and regulatory requirements. Merchant recognizes and agrees that Merchant is the Data Controller and eGiftify operates as the Data Processor. Merchant is also responsible for any privileges assigned to issue Promos, view and manage customer and financial data, export or import client lists, and maintaining oversight for all users and associated privileges, including users who are no longer with the company or should no longer have portal access.
  • Ticketing Services. The eGiftify Ticketing, Packages and Experience Services (Tickets) enable Merchants to sell or issue tickets, packages and experiences made available through the eGiftify Services for future ticketed experiences at a set date and time at participating venues. Ticket, Packages and Experiences are not gift cards or gift certificates. Unlike gift cards or gift certificates, purchasers are only entitled to use the tickets for the applicable ticketed experience and are only able to be used for the date and time indicated on the ticket and/or receipt. Tickets and/or Packages are sold by Merchant and Merchant is solely responsible for disclosing what is included with each ticket, including any limitations, exclusions, fees, restrictions, expiration dates and for managing the terms and conditions for each ticket, package and experience, including but not limited to customer requests for refunds, cancellations, disputes or exchanges. Merchant is solely responsible to abide by any and all existing and future privacy laws and regulatory requirements.
  • Loyalty Services. As agreed upon between Merchant and eGiftify, eGiftify Loyalty Services enables Merchants to create its own loyalty program and track, incentivize and reward customers via stamps, points, spend or a customized loyalty programs from the eGiftify Merchant Portal. Merchant is solely responsible for any liability arising out of its loyalty program. Merchant is also responsible for managing its program and for communication of its loyalty and reward program, including any restrictions, limitations, exclusions, fees, expiration dates and for managing the terms and conditions for its loyalty program. Merchant is responsible for any costs associated with rewards issued to its customers and for ensuring that there is sufficient reward inventory to fulfill its obligations under its loyalty program. Merchant is solely responsible to abide by any and all existing and future privacy laws and regulatory requirements.
  • Marketplaces. At eGiftify's sole discretion, eGiftify may aggregate multiple qualifying Merchants into one or more Marketplace (s) to enable customers to discover, claim coupons and rewards and purchase gift cards, offers , tickets, experiences, services, etc. directly from the Marketplace. In these cases, eGiftify may reimburse Merchant for purchases after redemption of Service instead of upon purchase. eGiftify reserves the right to remove any Merchant from any Marketplace it is operating at any time and for any reason and reserves the right to set Marketplace fees at its sole discretion. Merchant reserves the right to opt out of any Marketplace owned and operated directly by eGiftify.
  • Mobile App Services. The eGiftify Mobile App Services includes both, Merchant Mobile App and Customer Mobile Apps. Where applicable and agreed upon between Merchant and eGiftify, the Merchant Mobile App may be used as a standalone kiosk by Merchant to redeem, load, opt-in and reward its customers. The Customer Mobile App is available either as a complete stand-alone branded app to be downloaded by Merchant Customers or as a module provided as an SDK or API to be integrated into a separate independent app not managed by eGiftify. Merchant's use of Customer Mobile App requires explicit additional agreement by eGiftify. eGiftify may also offer its own branded Marketplaces or Marketplaces branded for third parties, via mobile apps or SDKs/APIs. eGiftify may use geo-fencing, geo-location, push notifications and other mobile features in any of its mobile apps.
  • Communications from eGiftify. As part of the Services, eGiftify uses multiple methods of communication with Merchants, customers and users of the Services, both directly and branded to Merchant, including but not limited to email, SMS text message, mail, phone, social media, push notifications, web-based technology/messages, chat. eGiftify applications may use GPS locator and/or beacon capabilities to identify a consumer location (if applicable). In order to use the SMS-based Services, Merchant and/or Merchant's Consumer must maintain an active account with a carrier of electronic communications through mobile devices and the Consumer not use a prepaid cellular phone to access the Services. If Merchant's consumer provides a mobile phone number, Merchant is responsible for ensuring the consumer hereby expressly consents to receive SMS text messages from the eGiftify platform regarding the Services and as otherwise described in our privacy policy. eGiftify is not responsible for any failed delivery attempts via SMS text message, email or any other means of delivery of eGiftify Services. Furthermore, eGiftify is not responsible for errors or incorrect information entered by the Purchaser of a gift for delivery to the recipient via SMS text message, email or through other delivery options through the eGiftify platform. eGiftify is not responsible for a gift mistakenly sent to an incorrect recipient.
• Third-Parties & Integrations
  • Certain features of our services and products may utilize the services and/or products of third-party vendors and business partners, which services and/or products may include software, applications and other services, including but not limited to Apple, Google, social media channels, connections to payment gateways, payment processors, email and text services, third-party gift card providers, gift card printers and online shipment fulfillment providers. eGiftify has no control over, and assumes no liability for, the content, accuracy, services, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the eGiftify Services. In addition, eGiftify cannot monitor, verify, censor or edit the content of any third party site or service. By using the eGiftify Services, you release and hold eGiftify harmless from any and all liability arising from your use of any third party website or service.
  • The Merchant and Consumer interactions with third party organizations and/or individuals found on or through the eGiftify Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. Merchant and/or Merchant's Consumer agree that eGiftify shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on the eGiftify site, or between Users and any third party, Merchant agrees that eGiftify is under no obligation to become involved. In the event that Merchant or Merchant's Consumer, has a dispute with one or more other Users, Merchant releases eGiftify, its officers, employees, agents and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or eGiftify Services. If Merchant is a California based company or resident, Merchant hall and hereby waives California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
  • Should Merchant require one or more integrations into such third party platforms or services, eGiftify and Merchant shall negotiate fees associated with integrations.
  • Should Merchant, directly or via their engagement with an eGiftify Reseller, request that eGiftify utilize gift codes from a third-party provider or integrate and issue gift codes from a third-party provider, Merchant agrees that eGiftify cannot be responsible for the inventory, accuracy, validity, reporting, redemption or security of third-party gift card codes, gift card functionality, program features or access. Utilizing a third-party gift card provider may disrupt certain features within the eGiftify Services which may not be supported by third-party provider.
  • The eGiftify website or application and its Services include social media tools that may, among other things, allow Merchant to manage access, post content and manage content on social network platforms (for example, Twitter® and Facebook®). Merchant hereby grants eGiftify all required permissions to access such sites and provide this functionality.
  • The eGiftify Site may contain links to websites that are controlled by third parties and access to certain third-party services (including our partners), which may include, without limitation, social network platforms, payment processing services and other payment intermediaries or websites and members of eGiftify's Network (each, a "Third Party Service"). These links and services are provided to Merchant as a convenience, and eGiftify is not affiliated with or responsible for the content, action or performance of any linked website or Third-Party Service. Merchant's use of such websites or services is at its own risk. Any such Third-Party Service may have terms of use and a privacy policy different than eGiftify's and Merchant should review the applicable terms and policies, including privacy and data gathering practices before proceeding. Merchant 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.
  • eGiftify 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 its sole discretion, with no liability to Merchant or to any third party. Any Third-Party Service may take actions to impact eGiftify's ability to make available some or all of the features of the Site or the Services at any time, with or without notice, and it will not be liable to Merchant or to any third party for any such actions. eGiftify accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, any Third-Party Services.
  • In order to use some features of the eGiftify site or the Services, Merchant must have access to a valid email or social networking account. Merchant is solely responsible for paying any third-party fees associated with such third-party networks. Merchant represents that its use of the Services will not violate any rules, restrictions policies, or requirements of its email service provider, internet service provider or other applicable service provider. 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 eGiftify of that third party or of any product or service provided by such third party. 
  • If Merchant uses the Services to collect payments (including registration for events, promotions, offers, ticketing, gifts, digital rewards, donations or products or services), Merchant is 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. Merchant is responsible for any refunds associated with any payments, including any transaction fees and other associated fees due to eGiftify and/or the third-party for performing the services.
• Merchant Responsibility
  • Gift Card Issuance. Merchant agrees that it, not eGiftify, is the issuer of the Merchant Gift Cards, Offers and/or any other eGiftify Services under this Agreement and is solely responsible for honoring all Services. eGiftify acts only as a processor of the Merchant’s Gift Cards, Offers and other Services and Merchant hereby further indemnifies eGiftify for any and all losses, legal fees, and expenses related to their inability or refusal to honor such Merchant Gift Cards, Offers and other Services. eGiftify provides the Services and processing systems and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Merchant or Merchant’s Gift Cards, Offers or any other eGiftify Services, or the validity and legality of any data entered into the eGiftify Customer Relationship Management system for Marketing purposes, including validation of the data contained in mailing lists for subscribed and unsubscribed customers. eGiftify is not responsible for any data or customer lists uploaded from external sources or added to existing client lists within the eGiftify Merchant Portal.
    
    Merchant acknowledges and agrees that it will not send any communication to any customer who has unsubscribed or opted out of receiving communication from Merchant, other than required by law such as information relating specifically to a financial transaction or in response to a customer inquiry. Merchant is solely responsible for the products and/or services provided in connection with the use or redemption of a Merchant Gift Card, Offers or any other Services. Each Merchant is responsible for ensuring that it and the Merchant Gift Cards, Offers and any other eGiftify Services that it issues or uses comply with all applicable laws and regulations, including GDPR, ADA, CCPA, and any other existing or future law or regulation. For any and all issues or questions related to Merchant Gift Cards or Offers or any other eGiftify products or services offered by Merchants, consumers must contact the applicable Merchant not eGiftify. Merchant must settle any returns, disputes, and any other issues relating to Merchant Gift Cards or Offers directly with the consumer. eGiftify is not responsible for any outstanding liability for any of the Services or related expenses, (including Merchant Gift Cards, Marketing, Offers, Promos, Loyalty, Ticketing, transaction or refund fees, chargebacks or any other Services provided by the Merchant) if the Merchant closes its business and ceases to operate or claims bankruptcy. eGiftify is not responsible and has no liability for Merchant downtime or the interruption of services.
  • Account Administration & User Privileges. Account Administrators and User Privileges. Merchant is solely responsible for establishing Account Administrators, Users and User Privileges to allow access to the eGiftify Merchant Portal. Merchant must define and manage the access, privileges and controls over the use of the eGiftify Services and the Account, including the removal of users no longer authorized to use the account. The Account Administrator has the ability to create, monitor or modify Users’ actions and permissions, manage access to, control, remove or otherwise change User and/or Account information. Merchant is responsible for the activities of all of its Users, including how Users use the Customer Data. Further, Merchant acknowledges that any action taken by a User of the Merchant’s account, is deemed by eGiftify as an authorized action by Merchant, and therefore Merchant shall have no claim in this regard.
  • Redemption. Merchant has the obligation to redeem the gift cards, offers and other services it sells or issues via the eGiftify platform. The eGiftify technology platform of Services can operate as standalone solution or integrate into third-party POS systems and other technology systems such as third-party Mobile Apps, Payment Gateways, Payment Processors, Hosted Solutions and other Systems via API, SDK, or Direct Integration. Depending on the method of integration with third-party partners, eGiftify may not be responsible for redemption transactions or onsite activation/issue transactions if not performed directly within the eGiftify Services. If eGiftify has a Digital Activate or Issue Only integration level with the third-party partner, eGiftify is not responsible for redemption data, including date and time of redemption, location of redemption, amount of redemption and current (updated) balance information prior to or after the redemption has taken place. eGiftify is not responsible for reporting of activity and balance information for Activate or Issue Only transaction level partner integrations.
  • Payment Gateway/Processing. Unless a separate Treat Wallet Merchant of Record Agreement exists between Merchant and eGiftify, Merchant is solely responsible for providing eGiftify their merchant gateway information and ensuring the accuracy of the gateway access keys, terminal identification, merchant identification and all other required information that eGiftify requires to enable merchant to accept payments through the eGiftify system. Merchant is also required to inform eGiftify of any changes to the Merchant’s gateway prior to such changes being enacted to ensure that eGiftify is able to process payments for Merchant through the eGiftify platform. Depending on the Merchant’s gateway or processor, a monthly gateway fee or an integration setup fee may apply.
  • Taxes. All fees and prices charged to Merchant in connection with this Agreement and the Services provided to Merchant under this Agreement, are exclusive of sales tax. Merchant shall be responsible for any federal, state, and local sales, use, property and other taxes that may be imposed as a result of this Agreement, any gift card order or any other Services provided under this Agreement.
• Chargebacks, Refunds, and Taxes
  • Merchant has full liability and responsibility for all Chargebacks, unless eGiftify explicitly accepts responsibility for fraud chargebacks in a separate Treat Wallet Merchant of Record Agreement that exits between Merchant and eGiftify. Reasons for a Chargeback include, but are not limited to (i) Stolen Credit Card Fraud (ii) Unauthorized Use of Credit Card (iii) the Transaction Data was prepared incorrectly or fraudulently (iv) Merchant did not obtain proper authorization, or did not provide a correct and legible authorization code on the Transaction Data, (v) the Customer disputes participating in or approving the Transaction, (vi) the Customer alleges that return of goods was improperly refused or that a refund was not processed for the Customer, (vii) the Customer has asserted what the Customer believes is a good faith claim or defense against the Transaction, or (viii) the Payment Instrument was not actually presented at the time of the Transaction and the Customer denies making the purchase. 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.
  • If eGiftify is serving as the Merchant of Record for Merchant and unless otherwise explicitly defined in a separate Merchant of Record agreement between Merchant and eGiftify, Merchant will have full responsibility for all Chargebacks and any fees associated with Chargebacks, Refunds and voids and all amounts shall be payable to eGiftify upon notice of the chargeback including any fees related to the chargeback from the Processor or eGiftify. Where there is an unusually high chargeback rate determined at the sole discretion of eGiftify, eGiftify reserves the right to discontinue selling some or all of the Merchant services on a temporary or permanent basis and terminate the agreement with the Merchant. eGiftify reserves the right to retain and if appropriate apply and/or set off some or all of the funds that are in Merchant’s Reserve Account against any funds owed to eGiftify if eGiftify (i) reasonably considers that it may be required to cover future refunds, chargebacks, charges against the Reserve Account or other liabilities Merchant may owe eGiftify, (ii) eGiftify believes that the funds do not adhere to its acceptable use policies, (iii) eGiftify considers that the Services are being used in a fraudulent or illegal manner or that the sale of the Services is fraudulent or illegal under any relevant law or regulation. eGiftify will communicate to Merchant the amount retained and the reason for the retention of the funds. eGiftify will retain any processing fees (where applicable), transaction fees, chargeback (or refund) fees and any other fees associated with a fraudulent or illegal transaction. Merchant agrees to pay all amounts due in full for services rendered relating to the Merchant of Record services
  • Excessive Chargebacks. If Merchant’s Processor determines that Merchant is receiving excessive Chargebacks (as determined by eGiftify and/or Processor), eGiftify or Processor may, but is not obligated to, (i) notify Merchant of new procedures it should adopt, (ii) increase or add additional Transaction Fees and 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 eGiftify or Processor’s discretion, without advance notice. Merchant must immediately pay any fines or fees imposed by eGiftify, Payment Brand, or Processor relating to Chargebacks to Merchant.
  • Refunds. It is the eGiftify policy that all sales are final. Should a refund be requested, Merchant must approve all refund requests for purchases made through the eGiftify platform where eGiftify is Merchant of Record. eGiftify will process full or partial refunds for the unused balance on the gift card, less any credit card processing and eGiftify transaction fees. If Merchant requests to refund the full amount of the unused balance, or a partial balance, including eGiftify processing and transaction fees, Merchant shall be responsible for reimbursing eGiftify for the credit card processing and eGiftify transaction fees. Reimbursement of processing and transaction fees must be satisfied by either bank debit or retention of funds held in the Merchant liability account. Where eGiftify is not Merchant of Record, it is the Merchant responsibility to approve and process refunds.
• Fees / Billing / Right to Setoff
  • Fee Schedule. Merchant will be subject to fees in accordance with any applicable Fee Schedule. Applicable fees will be debited from the account Merchant specifies monthly for all Services fees or will be billed monthly (payable upon receipt of invoice), even if Merchant is not actively using the Services. Merchant acknowledges and agrees that eGiftify’s measurements are the definitive measurements for payment due and any amounts owed hereunder. The applicable Fee Schedule is subject to change at any time at eGiftify’s sole discretion. eGiftify will use good faith efforts to notify Merchant prior to the effectiveness of any significant change to the applicable Fee Schedule but Merchant is responsible for reviewing the applicable Fee Schedule from time to time and remaining aware of the fees charged by eGiftify and any applicable discounts. eGiftify has the right to change its fee schedule based on fee and/or pricing changes out of its control made by our third-party providers at any time, and such changes shall take effect in the first billing cycle following the rate change notice.
  • Other Billing Arrangements. If Merchant receives the Services by means of one of eGiftify’s resellers or partners (a "Reseller"), the Reseller may be responsible for billing Merchant for the Services and Merchant may be subject to a different fee schedule and additional terms and conditions. Merchant is responsible for reviewing its 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 Merchant ceases to be a customer of a Reseller, any special pricing, benefits or terms may no longer be available to the Merchant. eGiftify may rely on information provided by the Reseller, if any, with respect to the status of Merchant’s eGiftify Account.
  • Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to Merchant under this Agreement must be submitted to eGiftify in writing within 60 days of the date such charges are incurred. Merchant agrees to waive all disputes not brought within the 60-day period, and all such charges will be final, owed to eGiftify, and not subject to challenge. 
  • Right of Setoff. In the event of any failure by Merchant to perform any of its obligations under this Agreement, eGiftify shall have all rights and remedies available to it at law or in equity except as otherwise provided in this Agreement. Without limiting the generality of the foregoing, Merchant grants to eGiftify and the applicable Bank Partner a contractual security interest in, and acknowledges that eGiftify and the applicable Bank Partner shall have a contractual and statutory right of set-off against, any and all accounts, funds, monies, and other properties of Merchant at such Bank Partner or which come into possession of eGiftify or such Bank Partner for the purpose of satisfying the obligations of Client under this Agreement.  None of Merchant’s monies or deposits at eGiftify or such Bank Partner shall be considered “special” deposits unavailable for set-off by eGiftify or such Bank Partner unless eGiftify has specifically so agreed in a separate writing.
• Communities and Marketplace
  • eGiftify’s Site may contain areas where Merchant is able to participate in the eGiftify Community or Marketplace, where products and Merchant offers are available to consumers who access the eGiftify website or mobile app. If Merchant has selected to participate in the eGiftify Marketplace by signing the “Marketplace Agreement” addendum, Merchant agrees that it is responsible for its own terms and conditions of the offers it makes and for any consequences thereof. Any offers Merchant makes available may be accessible to anyone with Internet access.
  • Merchant agrees that all Marketplace Offers are in compliance with all applicable laws and this Agreement. Merchant further agrees to abide by the eGiftify Community Terms & Condition of Use with respect to its use of the eGiftify Community and the eGiftify Marketplace Terms & Condition of Use with respect to its use of the eGiftify Marketplace. In the event that it violates any provision of the eGiftify Community Terms and Conditions of Use or the eGiftify Marketplace Terms and Conditions of Use, in eGiftify’s sole discretion, eGiftify reserves the right to terminate Merchant’s access to or use of the Site or the Services, disable Merchant’s eGiftify account or access to the Site or the Services, and remove all or a portion of Merchant’s 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 Merchant or Merchant’s entity that made such offers. Merchant is responsible for honoring any “claimed” gift, offer or coupon. eGiftify does not endorse and is 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 Merchant’s use of the Communities.
• Intellectual Property
  • This is an Agreement for Services and access to the eGiftify Site and Application only, and, except as expressly set forth herein, Merchant is not granted license to any software by this Agreement and nothing on the eGiftify Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. Merchant 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, the Products or any Software. If Merchant is using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict the 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 Merchant hereby covenants that, prior to engaging in such activities, it will first request that eGiftify perform such work at our standard professional services rates. eGiftify 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 Merchant; (b) to permit Merchant 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 Merchant with the information that it needs regarding the Software for the purpose for which applicable law permits it to engage in such activities despite a contractual prohibition on such activities.
  • eGiftify alone will retain any and all intellectual property rights relating to the Services, Software, Deliverables (tangible and intangible), Specifications or Materials, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Merchant or any other party relating to the Service and/or the Software, which are hereby assigned to eGiftify. Merchant will not, and will not permit any third party to, copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Merchant shall have no interest whatsoever, including copyright interests, franchise interests, license interests, patent rights, property rights or any other interest in the Services. This agreement will not be construed as granting to Merchant any patent rights or patent license in any patent which eGiftify may obtain in respect of the Services or eGiftify’s software.
  • The names of any and all Merchant-operated properties and all other Merchant service marks, trademarks, trade names, images, photographs, insignias and logos that contain such names or by reason or extent of usage are associated with the Merchant or the properties, or their affiliates (collectively, the “Marks”), are the sole and exclusive property of Merchant. Nothing in this Agreement shall be construed to grant eGiftify the right to use any Marks outside of that which is required to perform services under this agreement without Merchant’s prior written consent. Merchant represents that it owns all such names, service marks, trademarks, trade names, images, photographs, insignias and logos and assumes any and all liability related to eGiftify’s use of those materials.
• Indemnification
  • Merchant hereby agree to defend, indemnify and hold harmless Treat Wallet, Inc., eGiftify, its affiliates and its underlying service providers (i.e. vendors who help us provide the Services), business partners, third-party suppliers and providers, members of its network, account providers, licensors, distributors and agents and its 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 Merchant of this Agreement; (b) arises from Merchant’s contacts and content, including the content or effects of any messages you distribute, pictures you post to the eGiftify Site or System, events you host, surveys you administer, social media campaigns you publish, Promotions or Offers, Ticketing, Gift and Gift Cards and any other eGiftify Service Merchant offers, donations Merchant collect or products or services Merchant sells (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 Merchant’s provision of incomplete or inaccurate information to its subscribers or customers; (d) arises from Merchant’s activities or postings in any Community or Marketplace; (e) arises from Merchant’s use of any Third Party Service (as defined below); (f) arises from Merchant’s activities related to the eGiftify programs; or (g) otherwise arises from or relates to Merchant’s use of the Site or the Services. Merchant agrees to provide eGiftify with prompt written notice in the event of any such claims or actions. In addition, Merchant acknowledges and agrees that eGiftify has the right to seek damages when Merchant 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 eGiftify is required to respond to a third party or law enforcement subpoena or court order that is related to Merchant’s use of the Site or the Services, eGiftify may, in its sole discretion, require Merchant to reimburse eGiftify for its reasonable expenses associated with complying with such subpoena or order. 
• Warranty Disclaimer; Remedies; Release
  • MERCHANT EXPRESSLY AGREES 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 MERCHANT UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY MERCHANT BECAUSE OF SUCH USE OR RELIANCE, IS AT MERCHANT’S SOLE RISK. eGiftify DOES NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. eGiftify DISCLAIMS 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 eGiftify IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
  • eGiftify SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR MERCHANT’S COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD-PARTY SERVICES.
  • IN ADDITION, eGiftify DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD-PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN eGiftify, 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 ITS CUSTOMERS
  • NO CLAIM MAY BE ASSERTED BY MERCHANT AGAINST eGiftify MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. MERCHANT’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR eGiftify TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS.
  • TO THE EXTENT APPLICABLE LAW PERMITS, MERCHANT RELEASES eGiftify FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON MERCHANT’S SITE OR IN ANY MATERIALS MERCHAT SENDS USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF eGiftify OR THEIR RESPECTIVE SUBSCRIBERS AND (c) ANY ISSUE THAT MAY ARISE FROM ANY REMOTE ACCESS TO MERCHANT’S COMPUTERS OR OTHER SYSTEMS MERCHANT PROVIDES TO eGiftify’S PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. MERCHANT HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 (IF MERCHANT IS A CALIFORNIA RESIDENT), AND ANY AND ALL SUCH SIMILAR PROVISIONS IN ANY OTHER JURISDICTION (IF MERCHANT IS A RESIDENT OF SUCH JURISDICTION). 
  • MERCHANT EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF, OR RELATED TO, THE THIRD-PARTY SERVICES OR THE HARDWARE OR SOFTWARE USED TO DELIVER THE THIRD-PARTY SERVICES. FURTHERMORE, eGiftify DOES NOT WARRANT THAT THE THIRD-PARTY SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE THIRD-PARTY SERVICES WILL MEET MERCHANT’S REQUIREMENTS. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY THIRD-PARTY SERVICE PROVIDER’S WARRANTY. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE TERMS OF THIS PARAGRAPH DO NOT AFFECT THE TERMS OF ANY WARRANTIES FROM THE THIRD-PARTY SERVICE PROVIDER. MERCHANT ACKNOWLEDGES THAT NO REPRESENTATIVE OF CONNECTION OR OF ITS AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY THAT IS NOT IN THESE TERMS.
• Limitation of Liability
  • EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF TREAT WALLET, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL TREAT WALLET OR ANY OF ITS UNDERLYING SUBSIDIARIES, SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF ITS NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "TREAT WALLET") BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF TREAT WALLET 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 TREAT WALLET TO MERCHANT ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT MERCHANT PAID TO TREAT WALLET dba eGiftify FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM.
  • Merchant agrees that Treat Wallet, Inc. dba: 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. 
• Termination
  • Merchant may terminate this Agreement after the initial term by submitting in writing notice of cancellation 60 days prior to the termination of the then current term. If Agreement is not terminated within sixty (60) days of the then current period, this Agreement will extend for a period of no less than twelve (12) months and all other terms and conditions of this Agreement will remain in effect. Merchant is solely responsible for terminating this agreement.
  • eGiftify may, in its sole discretion, terminate Merchant’s eGiftify account or its access to or use of the Site or the Services, disable its eGiftify account or access to the Site or the Services, remove all or a portion of Merchant’s contacts and content, cancel or suspend any of Merchant’s Gift Cards, Promotions, Offers, Ticketing, Events, or any eGiftify Services, or put its eGiftify account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. eGiftify shall have no liability to Merchant or any third party due to or arising out of Merchant’s termination or actions, except that eGiftify may refund a pro rata portion of any prepaid amounts if eGiftify terminates Merchant without cause.
  • After termination, it is Merchant responsibility to download all of its data and content from the Merchant Portal within 30 days of termination. Merchant shall also process all unsubscribe requests from its last campaign immediately or as soon as reasonably possible within the 30 day post termination window and in accordance with any unsubscribe request laws. Under the CAN-SPAM Act and Canada's Anti-Spam Legislation, GDPR and CCPA Merchant acknowledges that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of this Agreement.
  • Upon termination of Merchant’s eGiftify account by Merchant or eGiftify, this Agreement and any rights or licenses granted to Merchant 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, Merchant will continue to be responsible for redemption and fulfillment of Gift Cards, Promotions and Offers, Tickets and any other eGiftify Service processed prior to such termination in accordance with this agreement. 
• Content Monitoring and Removal
  • Although eGiftify has no obligation to monitor the content provided by Merchant or its use of the Site or the Services, eGiftify 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 it believes may be in violation of the foregoing or any other provision of this Agreement. Merchant further understands and agrees that eGiftify 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 Merchant’s Promotions, Offers, Ticketing, Gifts or business content at any time. In no case will the foregoing make eGiftify responsible or liable for compliance with any such laws or obligations, for which Merchant remains solely responsible and liable.
• Marketing Assistance
  • Merchant acknowledges that eGiftify may from time to time provide it 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. Merchant acknowledges that such assistance and information is provided as a convenience to it and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client or any other professional relationship is formed. eGiftify does not warrant or guarantee that use of or compliance with this information will be sufficient to comply with Merchant’s obligations hereunder, applicable law or with any third-party rights.
• Merchant’s Information and Content
  • Merchant’s Information. In using the varied features of the Site or the Services, Merchant may provide information about itself or its ownership (such as name, contact information, or other registration information) to eGiftify and eGiftify may collect information about Merchant’s use of the Site or the Services. eGiftify may use this information in accordance with our Privacy Statement and relevant "just-in-time" notices, if any, provided at the point of information collection or use. Merchant represents and warranties that the information it provides is true and accurate.
  • Merchant’s Content and Contacts. eGiftify will also obtain any information that you provide to it in connection with Merchant’s 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). eGiftify serves as the data processor and as such, it acknowledges Merchant’s ownership rights in such contact lists. As more fully described in our Privacy Statement, eGiftify will never sell or rent Merchant’s contact lists to anyone without Merchant’s prior written permission.
    
    Merchant is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of its contacts and content, and Merchant is responsible for maintaining, securing and storing its contacts and content in accordance with applicable law and any contractual obligations it may have (including this Agreement). Merchant represents and warrants that it owns or has secured all rights and interest in and to its contacts and content required for eGiftify to use its contacts and content as contemplated by this Agreement and in accordance to any and all laws, including GDPR, CCPA, and any other similar legislation or requirements.
    
    Merchant hereby grants to eGiftify a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display Merchant’s contacts and content (other than the Business Content) only as required by eGiftify to offer and operate the Services and related services and as described in its Privacy Statement. Merchant acknowledges and approves of the use of its information for any and all communications with its contacts on behalf of the Merchant by eGiftify. To the extent Merchant uses templates provided by eGiftify, eGiftify hereby grants to Merchant a revocable, non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, perform and display the template and images solely in connection with Merchant’s use of the Site or the Services. 
  • Submissions. If Merchant submits any suggestions, business information, ideas, concepts or inventions or content to eGiftify through the Site or otherwise ("Submissions"), Merchant agrees such Submissions are non-confidential for all purposes and Merchant automatically grants, or warrants that the owner of such content or intellectual property shall be solely eGiftify in perpetuity. If such suggestions, business information, ideas, concepts, inventions or content is the preexisting property of Merchant, Merchant represents and warrants that it has expressly granted, eGiftify 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.
  • Backups. Merchant is solely responsible for making frequent backup copies of its contacts and content stored on the eGiftify system.
• Notice and Take Down Procedures, Copyright Agent
  • If Merchant believes any materials accessible on or from the Site or the Services infringe its copyright or other intellectual property, Merchant may request removal of those materials (or access thereto) from the Site or the Services by contacting eGiftify’s Operations Group or Merchant’s primary contact at eGiftify and providing the following information:
  • Identification of the copyrighted work that Merchant believes 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.
  • Merchant’s contact name, address, telephone number and (if available) email address.
  • A statement that Merchant has a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information that Merchant has supplied is accurate, and indicating that "under penalty of perjury," Merchant is the copyright owner or is authorized to act on the copyright owner's behalf.
  • A signature or the electronic equivalent from the copyright holder or authorized representative.
• 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”). Merchant 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, Merchant represents and warrants that Merchant is 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.
• Confidentiality
  • Merchant agrees that during its use of the Site or Services and for a period of three (3) years following its last use of the Site or Services, it will not disclose or use any Confidential Information (as defined below) of eGiftify. Merchant acknowledges that any breaches of this provision may result in irreparable harm to eGiftify for which no adequate remedy at law may be available and that as such eGiftify is entitled to equitable relief.
  • “Confidential Information” means any results or data relating to our Site or Services, and any proprietary information or information that gives eGiftify a competitive business advantage that eGiftify alone retains and any information, drawings, schematics or other related information that details eGiftify’s system and processes. Confidential Information does not include information that is publicly known through no fault of yours, has been independently developed without access to eGiftify Confidential Information, or is required to be disclosed by law or a governmental authority.
• Governing Law and Assignability
  • These Terms of Use shall be construed in accordance with and governed by the laws of the United States and the State of Delaware, without reference to their rules regarding conflicts of law. Merchant hereby irrevocably consents to the exclusive jurisdiction of the state or federal courts in Delaware, USA in all disputes arising out of or related to the use of the Site or Service. Merchant agrees to reimburse eGiftify for all costs and expenses, including reasonable attorney’s fees, as a result of such collection or legal action. Merchant waives trial by jury with respect to any litigation arising out of our relating to this Agreement.
  • This Agreement embodies the parties’ final, complete and exclusive agreement with respect to the Services being delivered under this Agreement and this Agreement shall supersede all prior and contemporaneous agreements, understandings and representations, written or oral, with respect to the eGiftify Services. Merchant shall not assign or transfer any interest, obligation or right arising out of this agreement without eGiftify’s prior written consent, which shall not be unreasonably withheld.
• Severability and Waiver
  • If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect and any invalid provision will be replaced with a valid provision that most closely approximates the intent of the invalid provision. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
• Modifications
  • eGiftify may, in its sole discretion and without prior notice or any liability to you for such action, (a) revise these Terms of Use; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. eGiftify shall post any revision to these Terms of Use to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms of Use and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.
• Acknowledgement
  • BY USING THE SERVICE OR ACCESSING THE SITE, MERCHANT ACKNOWLEDGES THAT IT HAS READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
• UK Site Visitors and Customers
  • If Merchant is accessing the Site or purchasing any Products from the UK, Sections 8, 9 and 10 of this Agreement will not apply to the Merchant as set out above, but will be replaced in their entirety with the following wording:
• "8Indemnification
  • Merchant hereby agrees to defend, indemnify and hold harmless eGiftify, its affiliates and its underlying service providers, (i.e. vendors who help it provide the Services) or suppliers business partners, members of its Network, account providers, licensors, distributors and agents and eGiftify and its 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 Merchant of any of the following Sections of this Agreement (b) arises from a breach by Merchant of the Anti-Spam Policy or Privacy Statement or of its obligations as a data controller under EU GDPR law; (c) arises from Merchant’s contacts and content, including the content or effects of any messages Merchant distributes, events Merchant hosts, surveys it administers, social media campaigns it publish, Promotions or Offers or Ticketing or Gifts it offers, donations it collects or products or services it sells (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 Merchant’s provision of incomplete or inaccurate information to its subscribers or customers; (e) arises from its activities or postings in any Community in breach of the terms of this Agreement; (f) arises from its 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 its activities related to eGiftify programs in breach of the terms of this Agreement. 
• "9Warranty Disclaimer; Remedies; Release
  • MERCHANT EXPRESSLY AGREES 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 MERCHANT UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY MERCHANT BECAUSE OF SUCH USE OR RELIANCE, IS AT MERCHANT’S SOLE RISK. eGiftify DOES NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DOES eGiftify MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. MERCHANT UNDERSTANDS THAT THAT eGiftify CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE SITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. MERCHANT IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY ITS PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA. eGiftify WILL NOT BE HELD LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT MERCHANT’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, NETWORK, DATA OR OTHER PROPRIETARY MATERIAL DUE TO MERCHANT’S USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO MERCHANT’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ANY WEBSITE LINKED TO IT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, eGiftify EXPRESSLY EXCLUDES 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 eGiftify IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
  • eGiftify SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR MERCHANT’S COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD-PARTY SERVICES.
  • IN ADDITION, eGiftify DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD-PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN eGiftify, 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 eGiftify’S CUSTOMERS.
  • TO THE EXTENT APPLICABLE LAW PERMITS, MERCHANT RELEASES eGiftify FROM ANY AND ALL CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON MERCHANT’S SITE OR IN ANY MATERIALS MERCHANT SENDS USING THE SITE OR THE PRODUCTS, (b) FROM ANY CLAIMS RELATED TO THE CONDUCT OF ANY OTHER CUSTOMERS OF eGiftify OR THEIR RESPECTIVE SUBSCRIBERS, AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO MERCHANT’S COMPUTERS OR OTHER SYSTEMS MERCHANT PROVIDES TO eGiftify PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES.
• "10Limitation of Liability
  • EXCEPT WITH RESPECT TO FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF eGiftify, 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 eGiftify 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 PRODUCTS IN THE 6 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY eGiftify TO YOU IN THAT 6 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. 
• TERMS:
  • "Charge" means a credit or debit instruction to capture funds from an account that a Customer maintains with a bank or other financial institution in connection with a Transaction.
  • "Customer" means an individual who purchases goods or services from Merchant utilizing the eGiftify platform for such purchase
  • "Dispute" means an instruction initiated by a Customer for the return of funds for an existing Charge (including a chargeback or dispute on a payment card network; and disputes on the Automated Clearinghouse (ACH) network).
  • "Merchant Account" means establishing an account with the digital service provider, requiring login credentials and secure access to manage privileges, perform certain account functions and track activity.
  • "Payment Method" means a type of payment method that eGiftify accepts as part of the Payment Processing Services, such as credit card, debit card, and ACH.
  • "Payment Method Acquirer" means a financial institution that is authorized by a Payment Method Provider to enable the use of a Payment Method by accepting Charges from Customers on behalf of the Payment Method Provider, and routing these Charges to the Payment Method Provider
  • "Payment Method Provider" means the provider of a Payment Method, such as Visa, Mastercard, Discover, and American Express.
  • "Payment Processing Services" are Services that you may use to accept payments from your Customers for Transactions, perform other financial transactions, manage subscriptions, and perform transaction reporting.
  • "Purchaser" means an individual that accesses the system for the sole purposed of purchasing the Merchants goods or services.
  • "Refund" means an instruction initiated by you to return funds to a Customer for an existing Charge.
  • "Return" means an instruction initiated by you, a Customer, a Payment Method Provider or a Payment Method Acquirer to return funds unrelated to an existing Charge.
  • "Reversal" means an instruction initiated by a Payment Method Provider, a Payment Method Acquirer or us to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by a Payment Method Provider or a Payment Method Acquirer; (ii) funds settled to you in error or without authorization; and (iii) submission of a Charge in violation of the applicable Payment Method Rules, or where submission of the Charge or your use of Payment Processing Services violates this Agreement.
  • "SDK" means "Software Development Kit", which provides a set of tools in one installable package, allowing developers to create software applications that can connect or interact with existing platforms and operating systems
  • "Stolen Credit Card Fraud" means any purchase made utilizing the eGiftify platform whereas the credit card used to purchase Merchant’s Product or Service has been determined by eGiftify or any Processor or Merchant Acquirer to have been utilized by a purchaser without proper authorization or card or card number has been stolen from its rightful owner and used in a fraudulent manner.

Last Updated: April 2021