THESE APP TERMS AND CONDITIONS (THE "TERMS") APPLY TO YOUR USE OF THE APP PROVIDED BY GYFT, INC. ("GYFT"). PLEASE READ THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
BY USING THE APP OR CLICKING THE "ACCEPT APP TERMS", YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (III) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE TERMS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THE TERMS, YOU MAY NOT USE THE APP.
License. Subject to the terms, conditions and limitations set forth in the Terms, Gyft grants you a nonexclusive, non-transferable and revocable license to use the App on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Gyft that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Restrictions. You agree not to do, or authorize or permit any third-party to do, any of the following: (i) distribute or make the App available over a network where it could be used by multiple devices at the same time; (ii) rent, lease, lend, sell, redistribute or sublicense the App; (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the App, any updates or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law); or (iv) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the App. If you violate any of the foregoing restrictions, your use of the App will immediately cease and you will have infringed the copyright and other rights of Gyft, which may subject you to prosecution and damages. Gyft reserves all rights not expressly granted to you in the Terms.
Registration Data & Other Information Provided by You. You agree to: (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms on the App ("Registration Data"); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Registration Data, and any other information you provide to Gyft, in order to keep it accurate, current and complete; and (iv) accept all risk of unauthorized access to the Registration Data and any other information you provide to Gyft. You represent and warrant that all Registration Data is accurate, current and complete.
The App is intended solely for users who are 13 years of age or older. Any registration or use of the App by anyone under the age of 13 is unauthorized, unlicensed and in violation of the Terms. By using the App, you represent and warrant that you are 13 years of age or older.
Terms of Sale. The App permits you to purchase gift cards, obtain gift promotions and related products and services. Please refer to our Terms of Sale [Add hyperlink to Terms of Sale] for the terms, conditions and policies applicable to your purchase of gift cards via the App. By buying gift cards through the App, you agree to be bound by and accept the Terms of Sale. Since the Terms of Sale are subject to change without prior notice at any time (in Gyft's sole discretion), you should review the Terms of Sale each time you purchase a gift card or obtain a gift promotion.
Third-Party Sites and Services; Third-Party Materials. The App 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"). 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 website, you should be aware that Gyft's terms and policies, including the 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 website to which you navigate from the App.
Third-Party Interactions. Your use of the App and your contact, interaction, or dealings with any third-parties arising out of your use of the App 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 App.
User Content and Conduct. You are solely responsible for all content you upload to or use with the App, as well as your conduct and the conduct of anyone using your account. The content you upload to or use with the App must comply with the user content and conduct rules below. Enforcement of the user content and conduct rules set forth in the Terms is solely at Gyft's 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 App will not contain any content that is prohibited by such rules.
You agree not to upload to, transmit, distribute, store, create or otherwise publish through the App any of the following:
You further agree that you are solely responsible for your conduct with respect to the App, and you agree that you will not do any of the following in connection with the App:
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 App, Gyft reserves the right, and has absolute discretion, to remove, screen or edit any user content posted, stored or uploaded on the App 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 App at your sole cost and expense. Any use of the App in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of your rights to use the App. You understand and agree that the use of your or another user's name, likeness, voice or identity in connection with various features on the App does not imply any endorsement of such feature or of the App unless explicitly stated otherwise.
Except for any feedback you provide with respect to the App or any of Gyft's products and services or as specifically provided otherwise in the Terms or in a separate agreement between you and Gyft, you retain ownership of the user content you post, store or upload on (or otherwise make available via) the App. However, if you post, store or upload user content on (or otherwise make available via) the App, you grant Gyft and its 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 App. 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 App or you otherwise have the right to make available such user content via the App and grant the rights granted in the Terms; (ii) the user content that you post, store or upload on (or otherwise make available via) the App is accurate and not misleading; and (iii) Gyft's use and making available the user content you supply does not violate the Terms and will not violate any rights of or cause injury to any person or entity.
Ownership. The App contains the valuable proprietary content of Gyft and its licensors and is protected by copyright and other intellectual property laws and treaties. You agree not to use the App except in its intended manner in accordance with the terms and conditions of the Terms.
Termination or Modification of App. Gyft reserves the right to change, suspend, remove, discontinue or disable access to the App 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 App.
Termination of Terms. If you breach any of the terms or conditions of the Terms or Gyft discontinues the App, the Terms will automatically terminate. In the event of the termination of the Terms for any reason: (i) the license granted to you in the Terms will immediately terminate; and (ii) you must immediately cease all use of the App and destroy or erase all copies of the App in your possession or control. All of the sections of the Terms will survive any termination except the License section and the Consent to Use of Data and Mobile Communications section. Any use of the App after termination is unlicensed and is in violation of the copyright and other rights of Gyft.
Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APP 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 APP IS 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 TERMS, THE APP, 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 THIRD-PARTY MATERIALS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, 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 APP WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY GYFT OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
Indemnification. You agree, at your sole expense, to defend, indemnify and hold us, our service providers and consultants, and their 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 conduct; (ii) your violation of the Terms or the rights of any third-party; or (iii) any user content.
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 APP, 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 APP EXCEED THE FEE FOR THE APP (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).
Copyright Complaints. Gyft takes intellectual property rights seriously. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, Gyft has adopted a policy of terminating, in appropriate circumstances and at Gyft's sole discretion, subscribers or account holders who are deemed to be repeat infringers. For further information, please see Gyft's Copyright Policy.
Export Limitations. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the App for any purposes prohibited by United States law including, but not limited to, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
US Government Rights.st The App and related documentation are "Commercial Items", as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
Governing Law; Venue. The laws of the State of California, excluding its conflicts of law rules, govern your use of the App. Your use of the App 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 App 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 App (including, but not limited to, your use of the App). Notwithstanding any terms to the contrary in the Terms, the following additional terms will apply to the download of the App for use on the iPhone, iPod Touch or iPad:
Acknowledgement. You and Gyft acknowledge that the terms are solely between you and Gyft, and not with Apple, Inc. ("Apple"), and Gyft, not Apple, is solely responsible for the App and the content contained within the App. You further acknowledge that the usage rules for the App 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 the App. 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 the Terms, the terms and conditions of the Usage Rules for the Apple App Store Terms of Service will govern if they are more restrictive.
Scope of License. The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Warranty. You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. 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 the App, and therefore, there are no warranties applicable to the App.
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 the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. You acknowledge and agree that, in the event of any third-party claim that the App or your possession and use of the App infringes 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 the Terms. 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.
Developer Name and Address. Any end-user questions, complaints or claims with respect to the App should be directed to:Gyft, Inc.
Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of the Terms against you as a third-party beneficiary thereof.