Welcome, and thank you for your interest in Giftbit, Corp., a Delaware corporation, , (“Giftbit”) and Giftbit’s Website at www.giftbit.com (the “Site”), as well as all related web sites, networks, APIs, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to this Agreement of Use is displayed (collectively, together with the Site, the “Giftbit Services”). These Terms of Giftbit Services are a legally binding contract between you (“Customer”) and Giftbit regarding Customer’s use of the Giftbit Services. PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY ACTIVATING YOUR ACCOUNT AND CLICKING “CLICKING HERE” IN THE ACCOUNT CONFIRMATION EMAIL, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE GIFTBIT PRIVACY POLICY (COLLECTIVELY, THIS “AGREEMENT”). If Customer is not eligible, or does not agree to this Agreement, then Customer must not use the Giftbit Services. These Terms of Service provide that all disputes between Customer and Giftbit will be resolved by BINDING ARBITRATION. CUSTOMER AGREES TO GIVE UP CUSTOMER’S RIGHT TO GO TO COURT TO ASSERT OR DEFEND CUSTOMER’S RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Customer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and Customer’s claims cannot be brought as a class action. Please review Section 18 below for the details regarding Customer’s agreement to arbitrate any disputes with Giftbit.
Giftbit is a service used by companies for incentive and rewards programs with customers, employees, and users. Giftbit is a digital service.
Customer must be at least eighteen (18) years of age to use the Giftbit Services. By agreeing to this Agreement, Customer represents and warrants to Giftbit: (i) that Customer is at least eighteen (18) years of age; (ii) that Customer has not previously been suspended or removed from the Giftbit Services; and (iii) that Customer’s registration and Customer’s use of the Giftbit Services is in compliance with any and all applicable laws and regulations. If you are using the Giftbit Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this Agreement and you agree to be bound by this Agreement on behalf of such organization, which is the Customer under this Agreement.
3.1 “Documentation” means Giftbit-provided user documentation, in all forms, relating to the Giftbit Services (e.g., user manuals, on-line help files).
3.2 “Gift Card” or “Reward” means a digital gift card, digital value, payout, digital currency, or prepaid incentive card that is purchased by Customer via the Giftbit Services and can be redeemed to transact with a Merchant.
3.3 “Gift Sending Terms” means the additional terms and conditions governing the sending of Gift Cards located at www.giftbit.com/giftterms, as may be updated by Giftbit from time to time.
3.4 “Giftbit Pricing Table” means Giftbit’s standard pricing table listing the fees and pricing for the different offerings of the Giftbit Services located at [www.giftbit.com/pricing], as may be updated by Giftbit from time to time, or an order form executed by both parties that specifies pricing applying to Customer’s use of the Giftbit Services.
3.5 “Giftbit Services” means Giftbit’s web-based digital gifting platform that enables the sending of customizable and trackable digital gift cards.
3.6 “Merchant” means a brand, business, or protocol that offers digital gift cards, digital value, or that processes or accepts prepaid incentive cards, that can be purchased by Customer for Recipients using the Giftbit Services, and includes without limitation the issuers of Giftbit Visa Incentive Cards.
3.7 “Order Form” means a Giftbit order form accepted by both parties in respect of a subscription to the Giftbit Services and which may specify additional terms and conditions applying to Customer’s use of the Giftbit Services.
3.8 “Recipient” means a recipient of one or more digital Rewards sent by Customer using the Giftbit Services.
3.9 “Service Level Agreement” means the Giftbit service level agreement executed by both parties and specifying any additional terms and conditions applying to Customer’s use of the Giftbit Services.
3.10 “Service Use Data” means any data or information other than Customer Data that is collected by Giftbit as a result of Customer’s access to or use of the Giftbit Services or any Recipient’s interactions with Giftbit Services and Rewards.
3.11 “Customer Data” means any data or information provided by or on behalf of Customer to Giftbit or the Giftbit Services, in connection with Customer’s use of the Giftbit Services.
3.12 “Giftbit Visa Incentive Card” means a digital or physical prepaid incentive card that is purchased by Customer via the Giftbit Services for Recipients located in the United States of America and can be redeemed to make purchases at participating Merchants.
4.1 Use of the Giftbit Services.
Subject to the terms and conditions of this Agreement and Customer subscribing to the Services through an Order Form or similar process, Giftbit grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to use the Giftbit Services solely to issue and manage Rewards to Recipients. Depending on the service and Gift Cards selected, Recipients may need to register an account with a Merchant or with Giftbit in order to secure or otherwise use such Gift Card, and will be required to accept a Merchant’s terms and conditions and/or Giftbit’s Recipient terms of use.
4.2 Use of the Documentation.
Subject to the terms and conditions of this Agreement, Giftbit grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Giftbit Services in accordance with this Agreement.
4.3 Service Level Agreement; Technical Support.
Subject to the terms and conditions of this Agreement, Giftbit will provide Customer with remote access to the Giftbit Services in accordance with the Service Level Agreement found at https://www.giftbit.com/service-level-agreement. For so long as Customer is current with its payment of all fees required under this Agreement, Giftbit will use reasonable efforts to provide Customer with the technical support services described in the Service Level Agreement by email from 9am-5pm Pacific, Monday through Friday, excluding holidays.
4.4 Use Restrictions.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Giftbit Services; (b) rent, lease, or otherwise permit third parties to use the Giftbit Services or Documentation; (c) use the Giftbit Services to
provide services to third parties (e.g., as a service bureau); nor (d) circumvent or disable any security or other technological features or measures of the Giftbit Services.
4.5 Compliance with Laws.
Customer will use the Giftbit Services and Documentation in compliance with the Gift Sending Terms and all applicable laws and regulations.
4.6 Customer Content.
Certain features of the Giftbit Services may permit Customer to upload content, including messages, photos, video, images, folders, data, text, and other types of works (collectively, “Customer Content”) and to publish Customer Content through the Giftbit Services. Customer retains copyright and any other proprietary rights that Customer may hold in the Customer Content. Customer grants Giftbit a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute the Customer Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any use of the Customer Content by Giftbit will be without any compensation paid to Customer. Customer is solely responsible for Customer Content and the consequences of posting or publishing Customer Content. By posting or publishing Customer Content, Customer represents and warrants that (a) Customer is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize Giftbit to use and distribute the Customer Content as necessary to exercise the licenses granted by Customer in this Section 3.6 and in the manner contemplated by Giftbit and this Agreement; and (b) the Customer Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
4.7 Customer Content Disclaimer.
Giftbit is under no obligation to edit or control Customer Content that Customer or other users post or publish, and will not be in any way responsible or liable for Customer Content. Giftbit may, however, at any time and without prior notice, screen, remove, edit, or block any Customer Content that in Giftbit’s sole judgment violates this Agreement or is otherwise objectionable. Customer understands that when using the Giftbit Services Customer may be exposed to Customer Content from a variety of sources and acknowledge that Customer Content may be inaccurate, offensive, indecent or objectionable. Customer agrees to waive, and hereby does waive, any legal or equitable rights or remedies Customer have or may have against Giftbit with respect to Customer Content. Giftbit expressly disclaims any and all liability in connection with Customer Content. If notified by a user or content owner that Customer Content allegedly does not conform to this Agreement, Giftbit may investigate the allegation and determine in its sole discretion whether to remove the Customer Content, which Giftbit reserves the right to do at any time and without notice. For clarity, Giftbit does not permit copyright-infringing activities on the Giftbit Services.
4.8 Protection against Unauthorized Use.
Customer will use reasonable efforts to prevent any unauthorized use of the Giftbit Services and Documentation and immediately notify Giftbit in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Giftbit Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Giftbit to prevent or terminate unauthorized use of the Giftbit Services or Documentation.
4.9 Prohibited Conduct.
BY USING THE GIFTBIT SERVICES, CUSTOMER AGREES NOT TO:
(a) use the Giftbit Services for any illegal purpose, or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
(c) post, upload, or distribute any Customer Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(d) interfere with security-related features of the Giftbit Services, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Giftbit Services or any part thereof except to the extent that such activity is expressly permitted by applicable law;
(e) interfere with the operation of the Giftbit Services or any user’s enjoyment of the Giftbit Services, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Giftbit Services, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Giftbit Services, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
(f) perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Giftbit Services accounts of others without permission, or falsifying Customer’s age or date of birth;
(g) sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials; or
attempt to do any of the foregoing in this Section 7, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 7.
4.10 Third-Party Giftbit Services and Linked Websites.
Giftbit may provide tools through the Giftbit Services that enable Customer to export information, including Customer Content, to third party services, including through features that allow Customer to link the Customer Account with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, Customer agrees that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of Customer’s exported information. The Giftbit Services may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
4.11 Ownership; Proprietary Rights.
The Giftbit Services are owned and operated by Giftbit. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Giftbit Services (the “Materials”) provided by Giftbit are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Giftbit Services are the property of Giftbit or its third-party licensors. Except as expressly authorized by Giftbit, Customer may not make use of the Materials. Giftbit reserves all rights to the Materials not granted expressly in this Agreement.
4.12 Reservation of Rights.
Giftbit grants to Customer a limited right to use the Giftbit Services and Documentation under this Agreement. Giftbit reserves to itself all rights to the Giftbit Services and Documentation not expressly granted to Customer in accordance with this Agreement.
4.13 Feedback.
If Customer provides any feedback to Giftbit concerning the functionality or performance of the Giftbit Services (including identifying potential errors or improvements), Customer hereby grants to Giftbit a perpetual, irrevocable, non-exclusive, transferrable, royalty-free, worldwide license (with right to grant sublicenses through multiple tiers) in and to the feedback, and Giftbit is free to use the feedback without payment or restriction.
4.14 Merchant Terms and Conditions.
Customer agrees and acknowledges that each Gift Card sent via the Giftbit Services is subject to additional terms, conditions and requirements issued by the applicable Merchant. These requirements may include without limitation that Recipients register accounts or otherwise provide additional personal information to such Merchant. Merchants will process may continue to hold the personal information of Recipient as set out in the privacy policy of such Merchants, including without limitation for the purpose of facilitating the issuance of additional Gift Cards to such Recipients. In the event of a conflict between the terms of this Agreement and the Merchant terms governing a Gift Card, the Merchant terms will prevail solely with respect to the purchase, issuance, redemption, and other use or exploitation of the Gift Card. Customer is solely responsible for reviewing any and all applicable Merchant terms prior to purchasing the Gift Cards from the Merchant.
5.1 DMCA Notification.
Giftbit complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended).
If Customer has any complaints with respect to material posted on the Giftbit Services, Customer may contact Giftbit’s Designated Agent at the following address:
Giftbit, Corp. 1209 Orange Street, Wilmington, Delaware, 19801
E-mail: copyright@giftbit.com Any notice alleging that materials hosted by or distributed through the Giftbit Services infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Giftbit Services;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Giftbit Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.5.2 Repeat Infringers. Giftbit will promptly terminate without notice the accounts of users that are determined by Giftbit to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had Customer Content removed from the Giftbit Services more than twice.
6.1 Customer Account.
Customer will be required to register an account with the Giftbit Service (“Customer Account”). Customer agrees to provide accurate information to Giftbit in connection with the registration process and keep the information accurate and up-to-date at all times. Customer is solely responsible for maintaining the security and confidentiality of its account, password, API keys, automated integrations, and second-factor login authentication. Customer agrees to accept full responsibility for all activities that occur under the Customer Account, and will immediately notify Giftbit if it has reasonable belief that the Customer Account is no longer secure.
6.2 Funding Customer Account.
Customer must purchase credit for the Giftbit Services by funding the Customer Account in accordance with the payment terms described in Section 6.4. Payments for any applicable subscription fees for the Giftbit Services and all Gift Cards that Customer sends to Recipients will be debited from the Customer Account.
6.3 Purchasing Digital Gift Cards.
The Giftbit Services permit Customer to purchase, create, and deliver Gift Card offers to Recipients. Unless otherwise agreed, Gift Cards offers are purchased and ordered for the face-value amount, plus applicable fees, through the Giftbit Services. When placing an order for a Gift Card offer to Recipients using the Giftbit Services, the Customer defines whether the Gift Card offer is available to the Recipient for one year or for less time. When Customer orders a Gift Card offer for a Recipient, the account balance of the Customer Account (“Account Balance”) will debited for the order amount. Unless otherwise agreed by Giftbit, order amounts are not refundable once an order is placed. Customer may contact Giftbit to request refunds for cancelled orders. Unless otherwise agreed, order amounts for expired, unclaimed offers of Gift Cards to Recipients are non-refundable. Order amounts for Gift Cards offers to Recipients are strictly non-refundable once a Recipient claims a Gift Card. For clarity, a Recipient claims a Gift Card offer when the Recipient selects and accepts a specific Gift Card from the offer of Gift Cards from Customer, irrespective of whether the Recipient uses the Gift Card to make purchases from a Merchant. A claimed and activated Giftbit Visa Incentive Card expires six-months after the date of activation. The Customer Account Balance does not receive credit for any amount remaining on an expired Giftbit Visa Incentive Card. Customer must have an Account Balance in excess of any desired purchase amounts in order to make the purchase.
6.4 Fees and Payment Terms.
Customer will pay Giftbit the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, in accordance with the then-current Giftbit Pricing Table found at https://www.giftbit.com/pricing/. Customer can fund the Customer Account via ACH, wire transfer of immediately available funds, or other form of payment agreed by Giftbit, using the payment instructions provided by Giftbit in the Customer’s Account within the Giftbit Services. Unless otherwise agreed, the Account Balance will only be updated, and paid amounts will only be available for use, once the payments are processed and credited to the Customer Account. Payments processed and credited to the Customer Account are considered non-refundable, unless Customer would like to cancel the Customer Account as permitted in Section 7.2. Customer understands that the processing of payments relies on third parties beyond Giftbit’s control and amounts paid may not be immediately available for use on the Giftbit Services. Customer will pay all fees incurred by Giftbit for accepting payment via wire, ACH, or other agreed upon payment method. All sums payable to Giftbit shall be paid in full by Customer, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance or other charges relating to the payment (or any handling of the payment) thereof.
6.5 Taxes.
Other than net income taxes imposed on Giftbit, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement or the purchase of Gift Cards from Merchants. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Giftbit after all such taxes are paid are equal to the amounts that Giftbit would have been entitled to in accordance with this Agreement as if the taxes did not exist.
7.1 Term.
This Agreement will commence upon the Effective Date and continue for the initial term of 1 year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive 1-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
7.2 Termination for Convenience.
Customer may terminate this Agreement at any time by cancelling the Customer Account using the settings functions in the Giftbit Services or by emailing Customer Support, support@giftbit.com, from the email address associated with the Customer Account. Giftbit may terminate this Agreement at any time on not less than 60 (sixty) day’s prior written notice to Customer.
7.3 Termination of Use; Discontinuation and Modification of the Giftbit Services.
If Customer violates any provision of this Agreement, Customer’s permission to use the Giftbit Services will terminate automatically. Additionally, Giftbit, in its sole discretion may terminate Customer’s Customer Account or suspend or terminate Customer’s access to the Giftbit Services at any time, with or without notice. Giftbit also reserve the right to modify or discontinue the Giftbit Services at any time (including, without limitation, by limiting or discontinuing certain features of the Giftbit Services) without notice to Customer. Giftbit will have no liability whatsoever on account of any change to the Giftbit Services or any suspension or termination of Customer’s access to or use of the Giftbit Services.
7.4 Termination for Material Breach.
Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. If Customer fails to timely pay any fees, Giftbit may, without limitation to any of its other rights or remedies, suspend performance of the Giftbit Services until it receives all amounts due.
7.5 Termination for inactivity.
If Customer’s account is inactive for a period of six (6) months or more, than Customer’s account will automatically terminate. Specifically, an inactive account means that the Customer’s account has not ordered Gift Cards for one year or more.
7.6 Post-Termination Obligations.
If this Agreement is terminated for any reason, (a) Giftbit will refund the Customer’s available Account Balance in accordance with this section; (b) any offers of Gift Cards at the time of termination will remain in effect; (c) Gift Card offers that expire after the termination of this Agreement will be refunded to Customer, minus any applicable Giftbit service fees, and (d) any and all liabilities accrued prior to the effective date of the termination will survive. In processing refunds of any Account Balance, Giftbit will give notice (“Refund Notice”) to Customer requesting directions on the account or other mechanism to which such refunds should be made, subject to such direction being commercially reasonable and in accordance with accepted practices and applicable law (where a refund to any financial institution within the USA or Canada shall be considered to be reasonable and acceptable). Refunds shall be made within 30 days of receipt of applicable directions from Customer in the same currency in which the Account Balance is held. While Giftbit makes every reasonable effort to refund Account Balances promptly on termination, occasional Customers fail to respond to Giftbit’s notices in respect of refunds and accordingly it is agreed that: (i) it is Customer’s responsibility to keep its contact details up to date in the Service; (ii) Giftbit shall give monthly Refund Notices to Customer following termination where there is an Account Balance until such time as such Account Balance is refunded or otherwise ceases; and (iii) if Customer fails to respond to Refund Notices within 6 (six) months of termination with appropriate refund details, Giftbit reserves the right to charge a monthly administration fee of the greater of either $1.00 or 10% of the outstanding Account Balance as at the date of termination, commencing the seventh (7th) month following termination.
Giftbit reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Customer’s rights or obligations, Giftbit will make reasonable efforts to notify Customer of such change. Giftbit may provide notice through a pop-up or banner within the Giftbit Services, by sending an email to any address Customer may have used to register for an account, or through other mechanisms. Additionally, if the changed Agreement materially modifies Customer’s rights or obligations, Giftbit may require Customer to provide consent by accepting the changed terms and conditions. If we require Customer’s acceptance of the changed terms and conditions, changes are effective only after Customer’s acceptance. If Customer does not accept the changed terms and conditions, we may terminate Customer’s access to and use of the Giftbit Services. All other changes are effective upon publication of the changed terms and conditions. Disputes arising under this Agreement will be resolved in accordance with the terms and conditions in effect that the time the dispute arose.
9.1 Mutual Warranties.
Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
9.2 Disclaimer.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, GIFTBIT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GIFTBIT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. GIFTBIT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE GIFTBIT SERVICES. GIFTBIT DOES NOT WARRANT THAT THE GIFTBIT SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE GIFTBIT SERVICES WILL BE SECURE OR UNINTERRUPTED. GIFTBIT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE GIFTBIT SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE GIFTBIT SERVICES WILL ALWAYS BE AVAILABLE. GIFTBIT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE GIFTBIT SERVICES.
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
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