Effective Date: 9/10/2018
Last Updated: 12/11/2019
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
GIVINGLI provides a service for Users to send personalized digital greeting cards, digital photos, and various gifts, including but not limited to cash and digital gift cards to loved ones and friends.
You may use the Service only if you can form a binding contract with GIVINGLI, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by GIVINGLI.
B. GIVINGLI Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, noncommercial use only and as permitted by the features of the Service. GIVINGLI reserves all rights not expressly granted herein in the Service and the GIVINGLI Content (as defined below). GIVINGLI may terminate this license at any time for any reason or no reason.
C. GIVINGLI Accounts
Your GIVINGLI account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a GIVINGLI account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to GIVINGLI with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. Accounts are registered solely to you personally and may not be sold, traded, gifted, or otherwise transferred at any time under any circumstances.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify GIVINGLI immediately of any breach of security or unauthorized use of your account. GIVINGLI will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the Service by changing the settings in your “Profile” page. By providing GIVINGLI your email address or phone number you consent to our using the email address or phone number to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address or phone number to send you other messages, such as notifications, changes to features of the Service and special offers. If you do not want to receive such email or text messages, you may opt out or change your preferences in your “Settings” page. Opting out may prevent you from receiving email or text messages regarding updates, improvements, or offers.
You may cancel your account at any time by following the instructions on the Service. If you voluntarily cancel your account, or allow your account to lapse, you may be unable to reactivate that account. We may permanently or temporarily terminate or suspend your account or any access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. If GIVINGLI has previously terminated your account for any reason, GIVINGLI further reserves the right, in its sole discretion, to prohibit you from reactivating such accounts or creating a new account on the Service.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the GIVINGLI servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email, digital greeting cards, or via any other means of communication; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (xiii) any other use that is illegal local, state, Federal, or International laws.
Accessing the visual content available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited. “Streaming” means a contemporaneous digital transmission of an visual work via the Internet from the GIVINGLI Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service.
You are solely responsible for your interactions with other GIVINGLI Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. GIVINGLI shall have no liability for your interactions with other Users, or for any User’s action or inaction.
E. Stripe Connect Accounts for Merchants
Payment processing services for Merchants on Givingli are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a Merchant on Givingli, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Givingli enabling payment processing services through Stripe, you agree to provide Givingli accurate and complete information about you and your business, and you authorize Givingli to share it and transaction information related to your use of the payment processing services provided by Stripe.
F. PANTONE and the PANTONE Chip Design are trademarks of Pantone LLC in the United States and/or in other countries. © Pantone LLC, 2020. All rights reserved.
This is an authorized PANTONE product manufactured under license by Givingli LLC. PANTONE Color identification is solely for artistic purposes and not intended to be used for specification. Refer to current PANTONE Color publications for accurate color. PANTONE and the PANTONE Chip Design are trademarks of Pantone LLC in the United States and/or in other countries. © Pantone LLC, 2020. All rights reserved. This is an authorized PANTONE product manufactured under license by Givingli LLC.
2. User Content
Some areas of the Service allow Users to post content such as images, drawings, text, video, profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. GIVINGLI has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, sexually explicit, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. GIVINGLI reserves the right, but is not obligated, to reject and/or remove any User Content that GIVINGLI believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
A. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
B. Your User Content and GIVINGLI’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
C. GIVINGLI may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
D. Your User Content does not contain any sexual, obscene, or otherwise objectionable material, and your use of the Service is not intended to harass, threaten, or otherwise cause the discomfort of another individual.
E. Your User Content and any use thereof in connection with the Service will not violate any laws of the territory in which you reside.
F. To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
GIVINGLI takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that GIVINGLI shall not be liable for any damages you allege to incur as a result of User Content.
3. User Content License Grant
By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to GIVINGLI a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and GIVINGLI’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place GIVINGLI under any fiduciary or other obligation, and that we are free to use Feedback without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, GIVINGLI does not waive any rights to use similar or related ideas previously known to GIVINGLI, or developed by its employees, or obtained from sources other than you.
5. Mobile Software
A. Mobile Software. We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Service. GIVINGLI does not warrant that the Mobile Software will be compatible with your mobile device. GIVINGLI hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one GIVINGLI account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that GIVINGLI may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. You acknowledge that any failure to upgrade the Mobile Software may result in the inability to use all or part of the Mobile Software. You agree to pay, and you acknowledge that you are solely liable for, any and all fees that result from your use of the Mobile Software, including without limitation, mobile carrier charges and/or Internet connection fees. You further acknowledge that this Agreement does not apply to any third party software, sites, or services that you use in connection with the Mobile Software, and that you are solely liable for your use of or access to any such third party services, whether or not such services are required to enable any features of the Mobile Software. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and GIVINGLI or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. GIVINGLI reserves all rights not expressly granted under this Agreement. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the GIVINGLI Service.
B. Mobile Software from Apple. The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and GIVINGLI, not Apple, and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to GIVINGLI as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to GIVINGLI as provider of the software. You acknowledge that, in the event of any third party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, GIVINGLI, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and GIVINGLI acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third party beneficiary thereof.
6. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “GIVINGLI Content”), and all Intellectual Property Rights related thereto, are the exclusive property of GIVINGLI and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any GIVINGLI Content. Use of the GIVINGLI Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
A. About. GIVINGLI offers Users the ability to purchase and mail postcards, printed photos, and other image-based products through the Service (“In-App Premium Products). GIVINGLI also offers other Gift Card Products for purchase (“Gift Card Products”). We reserve the right, with or without prior notice, to discontinue or limit the available quantity of any Gift Card Products or In-App Premium Products, to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; or to refuse to allow any User to purchase a Gift Product or Image Product.
B. Age. You must be 18 years of age or older to purchase any In-App Premium Products or Gift Card Products from GIVINGLI. You must be at least 21 years of age to purchase any Gift Card Products that contain alcohol.
C. Payment Information; Taxes. You represent and warrant that all information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service is accurate, complete, and current. You further represent and warrant that you have all legal rights necessary to use the payment method provided by you, and you agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You agree to pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. All payments through the Service are processed using a third-party processor. You acknowledge that GIVINGLI is not liable for any breaches of credit card or debit card security or privacy. If there is a dispute regarding payment of fees to, or Service rendered by, GIVINGLI, your account may be closed without warning or notice at the sole discretion of GIVINGLI.
D. Risk of Loss. All Gift Card Products and In-App Premium Products purchased from or via the Service are transported and delivered to you by an independent carrier not affiliated with, or controlled by, GIVINGLI. Title to Gift Card Products and In-App Premium Products purchased on the Service, as well as the risk of loss for such Gift Card Products and In-App Premium Products, passes to you when GIVINGLI or our supplier delivers these items to you.
E. Returns and Refunds.
(1) Gift Card Products. All Gift Card Products are sold “AS IS” and all sales are final. Any and all refunds will be issued at the sole discretion of GIVINGLI. GIVINGLI has no obligation to refund your purchase. You are solely responsible for the Gift Card Product once it is in your possession.
(2) In-App Premium Products. All In-App Premium Products are sold “AS IS” and all sales are final.
TO THE EXTENT THAT WE ISSUE ANY TYPE OF REFUND, THAT REFUND WILL BE FOR CREDITS TO YOUR ACCOUNT ONLY. WE DO NOT ISSUE ANY CASH REFUNDS OR REFUNDS TO YOUR CREDIT CARD OR OTHER PAYMENT METHOD OF ANY KIND, UNLESS OTHERWISE REQUIRED BY THE LAWS OF THE STATE IN WHICH YOU LIVE.
F. Disclaimers. You understand that the Gift Card Products are not provided by GIVINGLI and GIVINGLI is not liable for any legal issue or damages arising from any use or misuse of any Gift Card Products or In-App Premium Products. You further acknowledge that Gift Card Products or In-App Premium Products are not intended for use by children of any age, and you expressly assume sole liability for providing any individual under the age of 18 with access to any Gift Card Products or In-App Premium Products. Any Gift Card Products that apply towards alcoholic beverages must be consumed responsibly, and you acknowledge that you are solely liable for your consumption of any such alcoholic beverages and any consequences or liability arising therefrom. You hereby agree not use Gift Card Products or In-App Premium Products for any illegal purpose or in violation of any laws, and you assume all liability for any action you take that is contrary to any law, rule, or regulation of any territory. We use reasonable efforts to accurately display the attributes of In-App Premium Products that you order through the Service, including the colors of those In-App Premium Products; however, the actual color you see is dependent upon your mobile device or computer monitor, and we cannot guarantee that your mobile device or computer will accurately display such colors.
8. Promotional Products and Coupons.
By using the Service, you authorize GIVINGLI to send promotional products, coupons, or other advertising or promotional materials to any address, email, phone number, or app user profile you provide in connection with your use of the Service or purchase of Gift Card Products or In-App Premium Products.
GIVINGLI cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
11. DMCA Notice
Since we respect artist and content owner rights, it is GIVINGLI’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify GIVINGLI’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit GIVINGLI to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
9701 Wilshire Blvd.
Beverly Hills, CA 90212
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying GIVINGLI and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with GIVINGLI’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, GIVINGLI has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. GIVINGLI may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
12. Third-Party Links
You warrant and represent that you own all right, title, and interest in and to the photograph or image (“Image”) you are submitting, that GIVINGLI’s use of the Image will not violate the rights of any third party, and that such use will not give rise to any payment obligation on the part of GIVINGLI to any third party.
You grant GIVINGLI a non-exclusive, fully paid up and royalty-free, transferable, sub-licensable, irrevocable, worldwide license to use the Image.
You agree to defend, indemnify and hold harmless GIVINGLI and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
14. No Warranty
THE SERVICE, GIFT CARD PRODUCTS, AND IN-APP PREMIUM PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GIVINGLI OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, GIVINGLI, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
GIVINGLI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE GIVINGLI SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND GIVINGLI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GIVINGLI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE, OR ANY GIFT CARD PRODUCTS OR IN-APP PREMIUM PRODUCTS. UNDER NO CIRCUMSTANCES WILL GIVINGLI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIVINGLI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE OR ANY GIFT CARD PRODUCTS OR IN-APP PREMIUM PRODUCTS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL GIVINGLI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO GIVINGLI HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF GIVINGLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
GIVINGLI expressly disclaims any and all liability in connection with your purchase or use of any Gift Card Products or In-App Premium Products. You expressly acknowledge that you are solely liable for your use of the Service, including without limitation sending In-App Premium Products or Gift Card Products to third parties, and any User Content you provide in connection with any In-App Premium Products or Gift Card Products.
The Service is controlled and operated from facilities in the United States. GIVINGLI makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
16. Governing Law and Arbitration.
A. Negotiations. Subject to the exceptions set forth in Section 16(D) below, before initiating any arbitration or court proceeding, you and GIVINGLI agree to first attempt to negotiate any dispute, controversy or claim arising out of or related to this Agreement informally for at least thirty (30) days. Negotiations will begin upon written notice. GIVINGLI will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to GIVINGLI at 9701 Wilshire Blvd. 10th Floor Beverly Hills, CA 90212
B. Arbitration. Subject to the exceptions in Section 16(D) below, In the unlikely event that GIVINGLI has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any GIVINGLI claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in Santa Clara County, California, unless you and GIVINGLI agree otherwise. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND GIVINGLI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
C. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over GIVINGLI, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, or any other exception set forth in Section 16(D) below.
D. Exceptions to Negotiation and Arbitration. Notwithstanding anything to the contrary contained in the Agreement, nothing in Sections 16(A) or 16(B) shall prevent either party from (i) seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, Intellectual Property Rights, or other proprietary rights; (ii) pursuing any claims seeking to enforce or protect, or concerning the validity of either party’s Intellectual Property Rights; (iii) pursuing any claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; or (iv) any other claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for claims that are within the scope of such courts' jurisdiction in lieu of arbitration.
A. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by GIVINGLI without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
C. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and GIVINGLI as a result of this Agreement or your use of the Service.
D. Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
E. Equitable Remedies. You hereby agree that GIVINGLI would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
F. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with GIVINGLI in connection with the Service, shall constitute the entire agreement between you and GIVINGLI concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
G. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and GIVINGLI’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
H. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
I. Contact. Please contact us with any questions regarding this Agreement.