Giftbit Terms

10.1 Defense of Infringement Claims.

Giftbit will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Giftbit Services infringes or misappropriates any United States patent or registered copyright during the term of this Agreement if: (a) Customer gives Giftbit prompt written notice of the Claim; (b) Customer grants Giftbit full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Giftbit may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Giftbit Services). Customer will not defend or settle any Claim without Giftbit’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Giftbit will have sole control over the defense and settlement of the Claim.

10.2 Indemnification of Infringement Claims.

Giftbit will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Giftbit’s consent after Giftbit has accepted defense of the Claim); and (c) all amounts that Giftbit agrees to pay to any third party to settle any Claim under Section 7.1.

10.3 Exclusions from Obligations.

Giftbit will have no obligation under this Section 7 for any infringement or misappropriation arising out of or based upon (a) use of the Giftbit Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Giftbit Services or Custom Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Giftbit Services by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Giftbit Services in accordance with instructions provided by Giftbit, if the infringement or misappropriation would not have occurred but for such failure; (e) any of the Customer Content; or (f) any modification of the Giftbit Services not made or authorized in writing by Giftbit where such infringement or misappropriation would not have occurred absent such modification.

10.4 Mitigation.

If the Giftbit Services become, or in Giftbit’s reasonable opinion are likely to become, the subject of an infringement claim, Giftbit may, at its sole option and expense, either (a) procure for Customer the right to continue exercising the rights granted to Customer in this Agreement, (b) replace or modify the applicable item of the Giftbit Services so that it becomes non-infringing and remains functionally equivalent, or (c) terminate this Agreement and the licenses granted hereunder; except, that Giftbit is not obligated to take any such action, or any corrective or similar action, in respect of the Giftbit Services pursuant to this Agreement.10.5 Limited Remedy. This Section 7 states Giftbit’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Giftbit Services.

11.1 Defense.

Customer will defend Giftbit from any actual or threatened third party Claim arising out of or based upon (a) Customer’s use of the Giftbit Services; (b) Customer’s breach of any of the provisions of this Agreement; or (c) the alleged infringement or misappropriation of any third party right by the Customer Content. Giftbit will: (i) give Customer prompt written notice of the Claim; (ii) grant Customer full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Giftbit will not defend or settle any Claim without Customer’s prior written consent. Giftbit will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.

11.2 Indemnification.

Customer will indemnify Giftbit from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Giftbit in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Giftbit in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.1.

12.1 Disclaimer of Indirect Damages.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, GIFTBIT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS  OF BUSINESS, EVEN IF GIFTBIT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

12.2 Cap on Liability.

UNDER NO CIRCUMSTANCES WILL GIFTBIT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO GIFTBIT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

12.3 Independent Allocations of Risk.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY GIFTBIT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

13.1 Definition.

“Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. The parties agree that all Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.

13.2 Restricted Use and Nondisclosure.

During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.

13.3 Required Disclosure.

If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.

13.4 Return of Materials.

Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.

14.1 Collection of Platform User Data.

Customer agrees and acknowledges that (a) the Giftbit Services automatically log all user activity conducted on the Giftbit Services, and (b) Giftbit owns all right, title and interest in and to the Services Use Data. Giftbit will not publicly disclose any Services Use Data in a manner that would reasonably likely identify Customer as being the source of such Services Use Data.

14.2 Customer Data.

Customer owns all right, title and interest in and to the Customer Data. Customer hereby grants Giftbit: (a) a nonexclusive, royalty-free, transferrable, worldwide license (with right to sublicense) to store, process, and otherwise use the Customer Data during the term of this Agreement (and for a reasonable amount of time after the term) in connection with the provision of the Giftbit Hosted Services, any Custom Services, or as otherwise necessary or helpful to perform its obligations under this Agreement, and (b) a nonexclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license (with right to sublicense) to store, process and otherwise use the Customer Data in connection with the conduct by Giftbit of its business operations; provided that it is never disclosed to any third party except in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Customer or its Clients). Giftbit will at all times protect and maintain any Customer Data that constitutes the Confidential Information of Customer in accordance with Section 10; provided, however, that notwithstanding anything to the contrary herein, any Customer Data that is in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Customer) will not be considered to be the Confidential Information of Customer.

14.3 Privacy Policy.

Please read the Giftbit Privacy Policy carefully for information relating to our collection, use, storage and disclosure of Customer’s personal information and, to the extent applicable, Recipients’ personal information. The Privacy Policy can be found at https://www.giftbit.com/privacy-policy. The Giftbit Privacy Policy is hereby incorporated by reference into, and made a part of, this Agreement.

14.4 Additional Terms.

Customer’s use of the Giftbit Services is subject to any and all additional terms, policies, rules, or guidelines applicable to the Giftbit Services or certain features of the Giftbit Services that Giftbit may post on or link to on the Giftbit Services (the "Additional Terms"), such as rules applicable to particular features or content on the Giftbit Services, subject to Section 11 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, this Agreement.

15.1 Relationship.

Giftbit will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.

15.2 Assignability.

Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

15.3 Subcontractors.

Giftbit may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Giftbit remains responsible for all of its obligations under this Agreement.

15.4 Notices.

Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, insured courier (return receipt requested), or email to the appropriate party at the address set forth on the signature page of this Agreement. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.4. Notices are deemed given 4 business days following the date of mailing, 1 business day following delivery to a courier, or the next business day if sent by email (if no message delivery failure message is received by the sender).

15.5 Force Majeure.

Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

15.6 Governing Law.

This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. To the extent that any lawsuit or court proceeding is permitted hereunder, Customer and Giftbit agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Newcastle County, Delaware for the purpose of litigating all such disputes.

15.7 Waiver.

The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

15.8 Severability.

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Giftbit Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Giftbit Services will immediately terminate.

15.10 Interpretation.

The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.

15.11 Dispute Resolution and Arbitration.

(a) Generally. In the interest of resolving disputes between Customer and Giftbit in the most expedient and cost effective manner, Customer and Giftbit agree that any and all disputes arising in connection with this 

Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND GIFTBIT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Notwithstanding subsection 15.11(a), the parties both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either party’s right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

(c) Arbitrator. Any arbitration between Customer and Giftbit will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Giftbit.

(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that Giftbit does not have a physical address on file for you, by electronic mail ("Notice"). Giftbit’s address for Notice is: Giftbit, Corp., 1209 Orange Street, Wilmington, Delaware, 19801. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties agree to use good faith efforts to resolve the claim directly, but if they do not reach an agreement to do so within 30 days after the Notice is received, Customer or Giftbit may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer or Giftbit shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event the dispute is finally resolved through arbitration in Customer’s favor, Giftbit shall pay Customer (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Giftbit in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.

(e) Fees. In the event that Customer commences arbitration in accordance with this Agreement, Giftbit will reimburse Customer for its payment of the filing fee, unless the claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Newcastle County, Delaware, provided that if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, Customer agrees to reimburse Giftbit for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

(f) No Class Actions. CUSTOMER AND GIFTBIT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Giftbit agree otherwise, the arbitrator may not 

consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(g) Modifications. In the event that Giftbit makes any future change to this arbitration provision (other than a change to Giftbit’s address for Notice), Customer may reject any such change by sending us written notice within 30 days of the change to Giftbit’s address for Notice, in which case Customer’s account with Giftbit shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments Customer rejects shall survive.

(h) Enforceability. If Subsection 15.11(f) is found to be unenforceable or if the entirety of this Section 15.11 is found to be unenforceable, then the entirety of this Section 15.11 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 15.6 shall govern any action arising out of or related to this Agreement.

15.12 Consent to Electronic Communications.

By using the Giftbit Service, Customer consents to receiving certain electronic communications from Giftbit as further described in its Privacy Policy. Please read the Giftbit Privacy Policy to learn more about your choices regarding Giftbit’s electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that Giftbit sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

15.13 Contact Information.

The services hereunder are offered by Giftbit, Corp., located at 1209 Orange Street, Wilmington, Delaware, 19801. Customer may contact Giftbit by sending correspondence to the foregoing address or by emailing Giftbit at support@giftbit.com. If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this Agreement.

15.14 Entire Agreement.

This Agreement , together with any Order Form, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Giftbit Services. This Agreement, together with any Order Form, supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Giftbit has any authority to bind Giftbit with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Giftbit will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Giftbit specifically agrees to such provision in writing and signed by an authorized agent of Giftbit.

15.15 Customer Content for Customer Marketing Materials.

Customer grants Giftbit a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, transfer, display, reproduce, modify, and distribute Customer Content and Customer Marks (and the copyrights that exist in such Marks, if any) in whole or in part, in any media formats and through any media channels (now known or hereafter developed) in the form of Marketing Materials such as customer use cases and testimonials (collectively, “Customer Marketing Materials”). Customer retains copyright and any other proprietary rights that Customer may hold in the Customer Content. Any use of Customer Content by Giftbit will be without any compensation paid to Customer.

Customer Marketing Materials shall be expressly approved in advance by Customer, which approval shall not be unreasonably withheld, conditioned or delayed.

 

Last updated April 22, 2024