Gyft Terms of Service
Last Updated: November 13, 2013
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING OUR WEBSITES, MOBILE APPLICATIONS OR OTHER PRODUCTS OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS, BROWSE, OR USE OUR WEBSITES, MOBILE APPLICATIONS OR OTHER PRODUCTS OR SERVICES.
These Terms of Service (“Terms”) apply to your access to, and use of, the websites, mobile applications and other products and services (collectively, the “Services”) of Gyft, Inc. (“Gyft,” “we” or “us”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with Gyft for products, services or otherwise. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you violate these Terms.
Gyft reserves the right to change or modify these Terms at any time and in our sole discretion. If Gyft makes changes to these Terms, we will provide notice of such changes, such as by sending you a notification, by providing notice through the Services, or by updating the “Last Updated” date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of the Services. If you do not agree to any amended Terms, you must stop using the Services.
2. Additional Terms
If you purchase goods or services from Gyft, our Terms of Sale will apply. These Terms of Sale are subject to change at any time and in our sole discretion, so you should review the Terms of Sale each time you make a purchase.
3. Eligibility, Registration and Account
Our Services are intended solely for users who are 13 years of age or older. Any registration for, or use of, the Services by anyone under the age of 13 is unauthorized, unlicensed and in violation of these Terms. In addition, if you are between the ages of 13 and 18 (or the age of legal majority under applicable law), you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the Services, you represent and warrant that you are 13 years of age or older.
In order to use the Services, you will be required to register for an online account. You may only register for one account and you agree to: (i) provide accurate, current and complete information; (ii) maintain and promptly update your account information to keep it accurate, current and complete; (iii) maintain the security of your password and accept all risks of unauthorized access to your account; and (iv) promptly notify Gyft if you discover or otherwise suspect any security breaches related to the Services.
4. Gyft Points
Gyft Points is a rewards program where Gyft users can earn promotional points (“Points”) and apply them to receive discounts on future purchases:
5. Copyright and Limited License
Unless otherwise indicated by Gyft, the Services and all content and other materials therein, including, without limitation, the Gyft logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Gyft or our licensors or users and are protected by U.S. and international copyright laws.
Gyft hereby grants you a limited, nonexclusive, non-sublicensable license to use the Services and Content; however, such license is subject to these Terms and you are not permitted to (a) sell, rent, lease, lend, redistribute, sublicense or make commercial use of the Services or the Content; (b) copy, reverse engineer, decompile, disassemble or attempt to discover the source code of our Services; (c) modify, alter or otherwise make any derivative uses of the Services or the Content, or any portion thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice included in the Services; (e) use any data mining, robots or similar data gathering or extraction methods; (f) download (other than the page caching) any portion of the Services or the Content, except as expressly permitted on the Services; and (g) use the Services or the Content other than for their intended purposes. Any use of the Services or the Content other than as specifically authorized herein, without the prior written permission of Gyft, is strictly prohibited and will terminate the license granted in this section. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by Gyft, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
“Gyft” and the Gyft logo and any other Gyft product or service names, logos or slogans that may appear on the Services are Gyft’s trademarks in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Gyft. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners and may not be used without permission of the applicable trademark holder. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Gyft.
7. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, Gyft has adopted a policy of terminating, in appropriate circumstances and at Gyft’s sole discretion, users who are deemed to be repeat infringers. Gyft may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
Attn: CJ Macdonald
Address: 25 Taylor St, San Francisco CA 94102
Phone: (650) 319-7478
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
8. Third-Party Sites and Services; Third-Party Materials
Gyft may provide links to third-party websites, apps, mobile services or other third-party services (“Third-Party Services”) and may also display, link to or otherwise make available third-party content, data, information, events, apps or materials (“Third-Party Materials”) on the Services. Gyft does not endorse or control, and makes no representations or warranties of any kind, regarding any Third-Party Services or Third-Party Materials including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality or any other aspect thereof. If you access or use any Third-Party Services, you should be aware that Gyft’s terms and policies, including these Terms, no longer govern. You should review the applicable terms and policies including, but not limited to, privacy and data gathering practices, of any Third-Party Service to which you navigate from the Services.
9. Third-Party Interactions
Your use of the Services and your contact, interaction, or dealings with any third parties arising out of your use of the Services is solely at your own risk. You acknowledge and agree that Gyft is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as a result of your use of the Services.
10. User Content and Conduct
You are solely responsible for all content you post, upload to, transmit, distribute, store, create or otherwise publish through the Services (“User Content”), as well as your conduct and the conduct of anyone using your account. The User Content you provide must comply with the rules set forth below. Enforcement of the rules in this section is solely in our discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
By using the interactive areas of the Services, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
You further agree that you are solely responsible for your conduct with respect to the Services, and you agree that you will not do any of the following in connection with the Services:
Gyft takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or uploaded on (or otherwise made available via) the Services, nor is Gyft liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter while using the Services. Your use of the Services is at your own risk.
Although Gyft does not control and has no obligation to screen, edit or monitor any of the User Content posted, stored or uploaded on (or otherwise made available via) the Services, Gyft reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted, stored or uploaded on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post, store or upload on (or otherwise make available via) the Services at your sole cost and expense. Any use of the Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.
Except for any feedback you provide with respect to the Services (as discussed below in Section 11), you retain ownership of the User Content you post, store or upload on (or otherwise make available via) the Services. However, if you post, store or upload User Content on (or otherwise make available via) the Services, you grant Gyft and our affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any manner or media, on or off the Services. You represent and warrant that: (i) you own and control all of the rights to the User Content that you post, store or upload on (or otherwise make available via) the Services or you otherwise have the right to make available such User Content via the Services and grant the rights granted in these Terms; (ii) the User Content that you post, store or upload on (or otherwise make available via) the Services is accurate and not misleading; and (iii) Gyft’s use of the User Content you supply does not violate these Terms and will not violate any rights of, or cause injury to, any person or entity.
You can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Gyft and the Services (collectively, “Feedback”). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Gyft. Gyft shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GYFT DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE CONTENT CONTAINED THEREIN, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT GYFT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. GYFT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY GYFT OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree, at your sole expense, to defend, indemnify and hold us, our service providers and consultants, and OUR respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Services; (ii) your violation of these Terms or the rights of any third-party; or (iii) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services.
14. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL GYFT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SERVICES AND THE CONTENT THEREIN, INCLUDING BUT NOT LIMITED TO, THE GIFT CARDS, GIFT PROMOTIONS, RELATED PRODUCTS AND SERVICES (INCLUDING, BUT NOT LIMITED TO, THE REDEEMABILITY OF GIFT CARDS OR GIFT PROMOTIONS), USER CONTENT, THIRD-PARTY SERVICES AND/OR THIRD-PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF GYFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL GYFT’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE FEE FOR THE SERVICES (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE, THE COST TO PURCHASE AND OPERATE YOUR DEVICE, THE COST OF ANY GIFT CARDS OR THE COST OF ANY PRODUCTS OR SERVICES PURCHASED WITH A GIFT CARD).
15. Applicable Law
Gyft is based in the United States and our Services are subject to U.S. law. We make no representations or warranties that the Services are appropriate or available for use in other locations. If you choose to access or use the Services from locations outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules and regulations.
The laws of the State of California, excluding its conflicts of law rules, govern your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the Services or the terms will be filed only in the state and federal courts located in Santa Clara County, California, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Services (including, but not limited to, your use of the Services).
16. Termination or Modification of Services
Gyft reserves the right to change, suspend, remove, discontinue or disable access to the Services at any time and without notice. In no event will Gyft be liable for the removal of or disabling of access to any portion or feature of the Services.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
18. Contact Us
If you have any questions or concerns regarding these Terms or our Services, please contact us at firstname.lastname@example.org or:
Attn: Vinny Lingham
25 Taylor Street
San Francisco, CA 94102
19. SPECIAL PROVISIONS FOR iOS MOBILE APP USERS
Notwithstanding any terms to the contrary in the Terms, the following additional terms will apply to the installation and use of Gyft’s mobile applications on iOS devices. These Terms govern any updates to, or supplements or replacements for, Gyft’s mobile applications, unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
You and Gyft acknowledge that the terms in this Section 19 are solely between you and Gyft, and not with Apple, Inc. (“Apple”), and Gyft, not Apple, is solely responsible for Gyft’s mobile applications and the content contained therein. You further acknowledge that the usage rules for our mobile applications are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download our mobile applications. In the event of any conflict between the terms and conditions of the Usage Rules for the Apple App Store Terms of Service and the terms and conditions of these Terms, the terms and conditions of the Usage Rules for the Apple App Store Terms of Service will govern.
19.2 Scope of License
Gyft hereby grants you a nonexclusive, nontransferable, limited license to install and use our mobile applications on any iOS device that you own or control, solely as permitted by these Terms and the Usage Rules set forth in the Apple App Store Terms of Service.
19.3 Maintenance and Support
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Gyft’s mobile applications.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to Gyft’s mobile applications. In the event of any failure of our mobile applications to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the mobile applications by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to such applications. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Gyft. However, you understand and agree that in accordance with the Terms, Gyft has disclaimed all warranties of any kind with respect to our mobile applications, and therefore, there are no warranties applicable to such applications.
19.5 Product Claims
You acknowledge and agree that as between Apple and Gyft, Gyft, not Apple, is responsible for addressing any of your claims or any third-party claims relating to Gyft’s mobile applications or your possession and/or use of such applications, including, but not limited to: (i) product liability claims; (ii) any claim that the applications fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
19.6 Intellectual Property Rights
You acknowledge and agree that, in the event of any third-party claim that Gyft’s mobile applications, or your possession and use thereof, infringe that third-party’s intellectual property rights, Gyft, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
19.7 Legal Compliance
You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
19.8 Third-Party Beneficiary
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of Section 19 of these Terms, and that, upon your acceptance of these, Apple will have the right (and will be deemed to have accepted the right) to enforce Section 19 of these Terms against you as a third-party beneficiary thereof.