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Terms of Service
Giftet Terms of Service
Welcome to Giftet!
1
Your relationship with Giftet
1.1
Your use of Giftet’s
products, software, services and web sites (referred to collectively as the
“Giftet Services” in this document and excluding any services provided to you
by Giftet under a separate written agreement) is subject to the terms of a
legal agreement between you and Giftet. “Giftet” means Giftet Inc., whose
principal place of business is at 2180 Spencer Ave, Pomona, CA 91767, United
States. This document explains how the
agreement is made up, and sets out some of the terms of that agreement.
1.2
Unless otherwise agreed in writing with Giftet,
your agreement with Giftet will always include, at a minimum, the terms and
conditions set out in this document. These are referred to below as the
“Giftet Universal Terms.”
1.3
Your agreement with Giftet will also include
the terms of any Legal Notices applicable to the Services, in addition to the
Giftet Universal Terms. All of these are referred to below as the “Giftet
Additional Terms.” Where Giftet Additional Terms apply to a Service, these
will be accessible for you to read either within, or through your use of,
that Service.
1.4
Giftet Universal Terms, together with Giftet
Additional Terms, form a legally binding agreement between you and Giftet in
relation to your use of the Giftet Services. It is important that you take
the time to read them carefully. Collectively, this legal agreement is
referred to below as the “Giftet Terms.”
1.5
If there is any contradiction between what
Giftet Additional Terms say and what Giftet Universal Terms say, then Giftet
Additional Terms shall take precedence in relation to that Service.
2
Accepting the Terms
2.1
In order to use the Services, you must first
agree to the Terms. You may not use Giftet Services if you do not accept
Giftet Terms.
2.2
You can accept Giftet Terms by:
2.3
clicking to accept or
agree to Giftet Terms, where this option is made available to you by Giftet
in the user interface for any Service; or
2.4
by actually using the
Services. In this case, you understand and agree that Giftet will treat your
use of Giftet Services as acceptance of Giftet Terms from that point onwards.
2.5
You may not use Giftet Services and may not
accept Giftet Terms if (2.3) you are not of legal age to form a binding
contract with Giftet, or (2.4) you are a person barred from receiving Giftet
Services under the laws of the United States or other countries including the
country in which you are resident or from which you use Giftet Services.
2.6
Before you continue, you should print off or
save a local copy of Giftet Universal Terms for your records.
3
Language of Giftet Terms
3.1
Where Giftet has provided you with a translation
of the English language version of Giftet Terms, then you agree that the
translation is provided for your convenience only and that the English
language versions of Giftet Terms will govern your relationship with Giftet.
3.2
If there is any contradiction between what the
English language version of Giftet Terms says and what a translation says,
then the English language version shall take precedence.
4
Provision of Giftet Services
4.1
Giftet has subsidiaries and affiliated legal
entities around the world (“Giftet Subsidiaries and Affiliates”). Sometimes,
these companies will be providing Giftet Services to you on behalf of Giftet
itself. You acknowledge and agree that Giftet Subsidiaries and Affiliates
will be entitled to provide Giftet Services to you.
4.2
Giftet is constantly innovating in order to
provide the best possible experience for its users. You acknowledge and agree
that the form and nature of Giftet Services which Giftet provides may change
from time to time without prior notice to you.
4.3
As part of this continuing innovation, you
acknowledge and agree that Giftet may stop (permanently or temporarily)
providing Giftet Services (or any features within Giftet Services) to you or
to users generally at Giftet’s sole discretion,
without prior notice to you. You may stop using Giftet Services at any time.
You do not need to specifically inform Giftet when you stop using Giftet
Services.
4.4
You acknowledge and agree that if Giftet
disables access to your account, you may be prevented from accessing Giftet
Services, your account details or any files or other content which is
contained in your account.
4.5
You acknowledge and agree that while Giftet
may not currently have set a fixed upper limit on the number of transmissions
you may send or receive through Giftet Services or on the amount of storage
space used for the provision of Giftet Service; such fixed upper limits may
be set by Giftet at any time, at Giftet’s
discretion.
5
Use of Giftet Services by you
5.1
In order to access certain Giftet Services,
you may be required to provide information about yourself (such as
identification or contact details) as part of the registration process for
Giftet Service, or as part of your continued use of Giftet Services. You
agree that any registration information you give to Giftet will always be
accurate, correct and up to date.
5.2
You agree to use Giftet Services only for
purposes that are permitted by (a) Giftet Terms and (b) any applicable law,
regulation or generally accepted practices or guidelines in the relevant
jurisdictions (including any laws regarding the export of data or software to
and from the United States
or other relevant countries).
5.3
You agree not to access (or attempt to access)
any of Giftet Services by any means other than through the interface that is
provided by Giftet, unless you have been specifically allowed to do so in a
separate agreement with Giftet. You specifically agree not to access (or
attempt to access) any of Giftet Services through any automated means
(including use of scripts or web crawlers).
5.4
You agree that you will not engage in any
activity that interferes with or disrupts Giftet Services (or the servers and
networks which are connected to Giftet Services).
5.5
Unless you have been specifically permitted to
do so in a separate agreement with Giftet, you agree that you will not
reproduce, duplicate, copy, sell, trade or resell Giftet Services for any
purpose.
5.6
You agree that you are solely responsible for
(and that Giftet has no responsibility to you or to any third party for) any
breach of your obligations under Giftet Terms and for the consequences
(including any loss or damage which Giftet may suffer) of any such breach.
6
Your passwords and account security
6.1
You agree and understand that you are responsible
for maintaining the confidentiality of passwords associated with any account
you use to access Giftet Services.
6.2
Accordingly, you agree that you will be solely
responsible to Giftet for all activities that occur under your account.
6.3
If you become aware of any unauthorized use of
your password or of your account, you agree to notify Giftet immediately at http://www.giftet.com/Giftet_Personnel.htm.
7
Privacy and your personal information
7.1
For information about Giftet’s
data protection practices, please read Giftet’s
privacy policy at http://www.giftet.com/Giftet_Privacy.htm. This policy explains how Giftet treats your personal information, and
protects your privacy, when you use Giftet Services.
7.2
You agree to the use of your data in
accordance with Giftet’s privacy policies.
8
Privacy and your personal information
8.1
You understand that all information (such as
data files, written text, computer software, music, audio files or other
sounds, photographs, videos or other images) which you may have access to as
part of, or through your use of, Giftet Services are the sole responsibility
of the person from which such content originated. All such information is
referred to below as “Giftet Content.”
8.2
You should be aware that Giftet Content
presented to you as part of Giftet Services, including but not limited to
advertisements in Giftet Services and sponsored Giftet Content within Giftet
Services may be protected by intellectual property rights which are owned by
the sponsors or advertisers who provide that Content to Giftet (or by other
persons or companies on their behalf). You may not modify, rent, lease, loan,
sell, distribute or create derivative works based on Giftet Content (either
in whole or in part) unless you have been specifically told that you may do
so by Giftet or by the owners of that Content, in a separate agreement.
8.3
Giftet reserves the right (but shall have no
obligation) to pre-screen, review, flag, filter, modify, refuse or remove any
or all Content from any Service. In addition, there are commercially
available services and software to limit access to material that you may find
objectionable.
8.4
You understand that by using Giftet Services you
may be exposed to Content that you may find offensive, indecent or
objectionable and that, in this respect, you use Giftet Services at your own
risk.
8.5
You agree that you are solely responsible for
(and that Giftet has no responsibility to you or to any third party for) any
Content that you create, transmit or display while using Giftet Services and
for the consequences of your actions (including any loss or damage which
Giftet may suffer) by doing so.
9
Proprietary rights
9.1
You acknowledge and agree that Giftet (or Giftet’s licensors) own all legal right, title and
interest in and to Giftet Services, including any intellectual property
rights which subsist in Giftet Services (whether those rights happen to be
registered or not, and wherever in the world those rights may exist). You
further acknowledge that Giftet Services may contain information which is
designated confidential by Giftet and that you shall not disclose such
information without Giftet’s prior written consent.
9.2
Unless you have agreed otherwise in writing
with Giftet, nothing in Giftet Terms gives you a right to use any of Giftet’s trade names, trade marks, service marks, logos,
domain names, and other distinctive brand features.
9.3
If you have been given an explicit right to
use any of these brand features in a separate written agreement with Giftet,
then you agree that your use of such features shall be in compliance with
that agreement, any applicable provisions of the Terms, and Giftet's brand feature use guidelines as updated from
time to time.
9.4
Other than the limited license set forth in
Section 11, Giftet acknowledges and agrees that it obtains no right, title or
interest from you (or your licensors) under these Terms in or to any Content
that you submit, post, transmit or display on, or through, the Services,
including any intellectual property rights which subsist in that Content
(whether those rights happen to be registered or not, and wherever in the
world those rights may exist). Unless you have agreed otherwise in writing
with Giftet, you agree that you are responsible for protecting and enforcing
those rights and that Giftet has no obligation to do so on your behalf.
9.5
You agree that you shall not remove, obscure,
or alter any proprietary rights notices (including copyright and trade mark
notices) which may be affixed to or contained within Giftet Services.
9.6
Unless you have been expressly authorized to
do so in writing by Giftet, you agree that in using Giftet Services, you will
not use any trade mark, service mark, trade name, logo of any company or
organization in a way that is likely or intended to cause confusion about the
owner or authorized user of such marks, names or logos.
10
License from Giftet
10.1
Giftet gives you a personal, worldwide,
royalty-free, non-assignable and non-exclusive license to use the software
provided to you by Giftet as part of Giftet Services as provided to you by
Giftet (referred to as the “Software” below). This license is for the sole
purpose of enabling you to use and enjoy the benefit of the Giftet Services
as provided by Giftet, in the manner permitted by Giftet Terms.
10.2
You may not (and you may not permit anyone
else to) copy, modify, create a derivative work of, reverse engineer,
decompile or otherwise attempt to extract the source code of the Software or
any part thereof, unless this is expressly permitted or required by law, or
unless you have been specifically told that you may do so by Giftet, in
writing.
10.3
Unless Giftet has given you specific written
permission to do so, you may not assign (or grant a sub-license of) your
rights to use the Software, grant a security interest in or over your rights
to use the Software, or otherwise transfer any part of your rights to use the
Software.
11
Content license from you
11.1
Unless Giftet has given you specific written
permission to do so, you may not assign (or grant a sub-license of) your
rights to use the Software, grant a security interest in or over your rights
to use the Software, or otherwise transfer any part of your rights to use the
Software.
11.2
You retain copyright and any other rights you
already hold in Content which you submit, post or display on or through, the
Services. By submitting, posting or displaying the content you give Giftet a
perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to
reproduce, adapt, modify, translate, publish, publicly perform, publicly
display and distribute any Content which you submit, post or display on or
through, the Services. This license is for the sole purpose of enabling
Giftet to display, distribute and promote Giftet Services and may be revoked
for certain Services as defined in Giftet Additional Terms of those Services.
11.3
Unless Giftet has given you specific written
permission to do so, you may not assign (or grant a sub-license of) your
rights to use the Software, grant a security interest in or over your rights
to use the Software, or otherwise transfer any part of your rights to use the
Software.
11.4
You agree that this license includes a right
for Giftet to make such Content available to other companies, organizations or
individuals with whom Giftet has relationships for the provision of
syndicated services, and to use such Content in connection with the provision
of those services.
11.5
You understand that Giftet, in performing the
required technical steps to provide Giftet Services to our users, may (a)
transmit or distribute your Content over various public networks and in
various media; and (b) make such changes to your Content as are necessary to
conform and adapt that Content to the technical requirements of connecting networks,
devices, services or media. You agree that this license shall permit Giftet
to take these actions.
11.6
You confirm and warrant to Giftet that you
have all the rights, power and authority necessary to grant the above
license.
12
Software updates
12.1
Unless Giftet has given you specific written
permission to do so, you may not assign (or grant a sub-license of) your
rights to use the Software, grant a security interest in or over your rights
to use the Software, or otherwise transfer any part of your rights to use the
Software.
13
Ending your relationship with Giftet
13.1
Giftet Terms will continue to apply until
terminated by either you or Giftet as set out below.
13.2
If you want to terminate your legal agreement
with Giftet, you may do so by (a) notifying Giftet at any time and (b)
closing your accounts for all of Giftet Services which you use, where Giftet
has made this option available to you. Your notice should be sent, in
writing, to Giftet’s address which is set out at
the beginning of these Terms.
13.3
Giftet may at any time, terminate its legal
agreement with you if:
(a) you
have breached any provision of the Terms (or have acted in manner which
clearly shows that you do not intend to, or are unable to comply with the
provisions of the Terms); or
(b) Giftet
is required to do so by law (for example, where the provision of the Services
to you is, or becomes, unlawful); or
(c) the
partner with whom Giftet offered Giftet Services to you has terminated its
relationship with Giftet or ceased to offer the Services to you; or
(d) Giftet
is transitioning to no longer providing the Services to users in the country
in which you are resident or from which you use the service; or
(e) the provision of the Services to you by Giftet is, in Giftet’s opinion, no longer commercially viable.
13.4
Nothing in this Section shall affect Giftet’s rights regarding provision of Services under
Section 4 of the Terms
13.5
When these Terms come to an end, all of the
legal rights, obligations and liabilities that you and Giftet have benefited
from, been subject to (or which have accrued over time whilst the Terms have
been in force) or which are expressed to continue indefinitely, shall be
unaffected by this cessation, and the provisions of paragraph 20.7 shall
continue to apply to such rights, obligations and liabilities indefinitely.
14
EXCLUSION OF WARRANTIES
14.1
NOTHING IN THESE TERMS, INCLUDING SECTIONS 14
AND 15, SHALL EXCLUDE OR LIMIT GIFTET’S WARRANTY OR LIABILITY FOR LOSSES
WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS
OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY
NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR
CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN
YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE
LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.2
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR
USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED
"AS IS" AND “AS AVAILABLE.”
14.3
IN PARTICULAR, GIFTET, ITS SUBSIDIARIES AND
AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(a)
YOUR USE OF THE SERVICES WILL MEET YOUR
REQUIREMENTS,
(b)
YOUR USE OF THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(c)
ANY INFORMATION OBTAINED BY YOU AS A RESULT OF
YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(d)
THAT DEFECTS IN THE
OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE
SERVICES WILL BE CORRECTED.
14.4
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND
THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR
OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL
14.5
NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM GIFTET OR THROUGH OR FROM THE SERVICES SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
14.6
GIFTET FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES
AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
15
LIMITATION OF LIABILITY
15.1
SUBJECT TO OVERALL PROVISION IN PARAGRAPH 14.1
ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT GIFTET, ITS SUBSIDIARIES AND
AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(a)
ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED
BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL
INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY
OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA
SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER
INTANGIBLE LOSS;
(b)
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY
YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
i.
ANY RELIANCE PLACED BY YOU ON THE
COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY
RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE
ADVERTISING APPEARS ON THE SERVICES;
ii.
ANY CHANGES WHICH GIFTET MAY MAKE TO THE
SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE
SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
iii.
THE DELETION OF, CORRUPTION OF, OR FAILURE TO
STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY
OR THROUGH YOUR USE OF THE SERVICES;
iv.
YOUR FAILURE TO PROVIDE GIFTET WITH ACCURATE
ACCOUNT INFORMATION;
v.
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT
DETAILS SECURE AND CONFIDENTIAL;
15.2
THE LIMITATIONS ON GIFTET’S LIABILITY TO YOU
IN PARAGRAPH 15.1 ABOVE SHALL APPLY WHETHER OR NOT GIFTET HAS BEEN ADVISED OF
OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
16
Copyright and trade mark policies
16.1
It is Giftet’s
policy to respond to notices of alleged copyright infringement that comply
with applicable international intellectual property law (including, in the United States,
the Digital Millennium Copyright Act) and to terminating the accounts of
repeat infringers.
16.2
Giftet operates a trade mark complaints
procedure in respect of Giftet’s advertising
business.
17
Advertisements
17.1
Some of the Services are supported by
advertising revenue and may display advertisements and promotions. These
advertisements may be targeted to the content of information stored on the
Services, queries made through the Services or other information.
17.2
The manner, mode and extent of advertising by
Giftet on the Services are subject to change without specific notice to you.
17.3
In consideration for Giftet granting you
access to and use of Giftet Services, you agree that Giftet may place such
advertising on Giftet Services.
18
Other content
18.1
Giftet Services may include hyperlinks to
other web sites or content or resources. Giftet may have no control over any
web sites or resources which are provided by companies or persons other than
Giftet.
18.2
You acknowledge and agree that Giftet is not
responsible for the availability of any such external sites or resources, and
does not endorse any advertising, products or other materials on or available
from such web sites or resources.
18.3
You acknowledge and agree that Giftet is not
liable for any loss or damage which may be incurred by you as a result of the
availability of those external sites or resources, or as a result of any
reliance placed by you on the completeness, accuracy or existence of any
advertising, products or other materials on, or available from, such web
sites or resources.
19
Changes to Giftet Terms
19.1
Giftet may make changes to Giftet Universal
Terms or Giftet Additional Terms from time to time. When these changes are
made, Giftet will make a new copy of Giftet Universal Terms available and any
new Giftet Additional Terms will be made available to you from within, or
through, the affected Services.
19.2
You understand and agree that if you use
Giftet Services after the date on which Giftet Universal Terms or Additional
Terms have changed, Giftet will treat your use as acceptance of the updated
Universal Terms or Additional Terms.
20
General legal terms
20.1
Sometimes when you use Giftet Services, you
may (as a result of, or through your use of the Services) use a service or download
a piece of software, or purchase goods, which are provided by another person
or company. Your use of these other services, software or goods may be
subject to separate terms between you and the company or person concerned. If
so, Giftet Terms do not affect your legal relationship with these other
companies or individuals.
20.2
Giftet Terms constitute the whole legal
agreement between you and Giftet and govern your use of Giftet Services (but
excluding any services which Giftet may provide to you under a separate
written agreement), and completely replace any prior agreements between you
and Giftet in relation to the Services.
20.3
You agree that Giftet may provide you with
notices, including those regarding changes to Giftet Terms, by email, regular
mail, or postings on Giftet Services.
20.4
You agree that if Giftet does not exercise or
enforce any legal right or remedy which is contained in the Terms (or which
Giftet has the benefit of under any applicable law), this will not be taken
to be a formal waiver of Giftet’s rights and that
those rights or remedies will still be available to Giftet.
20.5
If any court of law, having the jurisdiction
to decide on this matter, rules that any provision of these Terms is invalid,
then that provision will be removed from Giftet Terms without affecting the
rest of Giftet Terms. The remaining provisions of Giftet Terms will continue
to be valid and enforceable.
20.6
You acknowledge and agree that each member of
the group of companies of which Giftet is the parent shall be third party
beneficiaries to Giftet Terms and that such other companies shall be entitled
to directly enforce, and rely upon, any provision of Giftet Terms which
confers a benefit on (or rights in favor of) them. Other than this, no other
person or company shall be third party beneficiaries to Giftet Terms.
20.7
Giftet Terms, and your relationship with
Giftet under Giftet Terms, shall be governed by the laws of the State of California without
regard to its conflict of laws provisions. You and Giftet agree to submit to
the exclusive jurisdiction of the courts located within the county of Los Angeles,
California
to resolve any legal matter arising from Giftet Terms. Notwithstanding this,
you agree that Giftet shall still be allowed to apply for injunctive remedies
(or an equivalent type of urgent legal relief) in any jurisdiction.
7 April 2008
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