You understand and acknowledge that the Service is being provided as a “Beta Version”, and is made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing Gifteka with feedback on the quality and usability of the Service. The Service may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers and computers) connected thereto. Gifteka strongly encourages you to back-up all data and information on your device and any peripherals prior to using the Service. You are responsible for backing up, to your own computer or other device, any important documents, images or other User Content that you store or access via the Service. Gifteka does not guarantee or warrant that any User Content that you may store or access through the Service will not be subject to inadvertent damage, corruption or loss. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, Gifteka is not obligated to provide any maintenance, technical or other support for the Service.
As part of using the Service, Gifteka will provide you with the opportunity to submit comments, suggestions, or other feedback regarding your use of the Service. You agree that in the absence of a separate written agreement to the contrary, Gifteka will be free to use any feedback you provide for any purpose.
REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE
You need to be at least 13 years old to register for and use the Service. No one under 13 is allowed to create an account or use the Service.
By using the Service, you hereby confirm
- You are not a person who appears on the U.S. Treasury Department’s list of Specially Designated Nationals or is otherwise barred from receiving or using the Service under the laws of the United States or any other applicable jurisdiction; and
As a user who signs up for the Service, you will be required to create a personalized account which includes a unique username and a password to access the Service and to receive messages from Gifteka or other users you designate. You agree to notify us immediately of any unauthorized use of your password and/or account. Gifteka will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your member name, password and/or account.
In the event you change or deactivate the email information used to create your Gifteka account, you must update your account information through [Settings] within 24 hours to prevent our transmission of information intended for you to someone else.
Your permission to use the Service is conditioned upon the following Use Restrictions: You agree that you will not (nor will you encourage or promote another to) under any circumstances:
- post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- use the Service for any unlawful purpose or for the promotion of illegal activities;
- attempt to, or harass, bully, abuse, or harm another person or group on our Service;
- use another user’s account, username or password without permission;
- use or develop any third-party applications that interact with other users’ content or the Service;
- provide false or inaccurate information when registering an account;
- solicit login credentials from another user;
- post pornography, graphic violence, threats, hate speech, or incitements to violence;
- interfere or attempt to interfere with the proper functioning of the Service;
- make any automated use of our systems, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- upload any viruses or other malicious code or otherwise compromise the security of the Service;
- attempt to circumvent any content-filtering techniques we use, or attempt to access areas or features of the Service that you are not authorized to access;
- bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data; or
- publish or link to malicious content intended to damage or disrupt another user’s browser or computer.
In addition, when using the Service, you may not use our Service in a way that would distract you from obeying traffic or safety laws.
POSTING AND CONDUCT RESTRICTIONS.
When you create your own personalized account, you will be able to provide, create, post, send, link, receive, and store content (“User Content”). You are solely responsible for the User Content that you post, upload, link to or otherwise make available via the Service. You agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. Gifteka, however, reserves the right to remove any User Content from the Service at its discretion.
The following rules pertain to User Content. By transmitting and submitting any User Content while using the Service, you agree as follows:
- You are solely responsible for your account and the activity that occurs while signed in to or while using your account;
- You will not post information that is malicious, false or inaccurate;
- You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and
- You hereby affirm we have the right to determine whether any of your User Content submissions are appropriate and comply with these Terms of Service, remove any and/or all of your submissions, and terminate your account with or without prior notice.
You understand and agree that any liability, loss or damage that occurs as a result of the use of any User Content that you make available or access through your use of the Service is solely your responsibility. Gifteka is not responsible for any public display or misuse of your User Content. Gifteka does not, and cannot, pre-screen or monitor all User Content. However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Service.
You acknowledge and agree that you are not entitled to any compensation from Gifteka or our business partners if your name, likeness or voice is conveyed through the Service.
ONLINE CONTENT DISCLAIMER
Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by Gifteka, are those of their respective authors (whether posted publicly or sent privately), and should not necessarily be relied upon. Such authors are solely responsible for such content. Gifteka does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does Gifteka adopt nor endorse, nor is Gifteka responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties using the Service. Gifteka 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. Under no circumstances will Gifteka be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to users.
DATA CHARGES AND MOBILE PHONES
All mobile charges incurred for using our Service, including text-messaging and data charges, are solely your responsibility. For information about such charges, you should contact your service provider before using the Service.
LINKS TO OTHER SITES AND/OR MATERIALS
As part of the Service, Gifteka may provide you with or allow you to import to our Site convenient links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). These links and the ability to use them on our Service are provided as a courtesy to Service subscribers. Gifteka has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Gifteka, and Gifteka is not responsible for any Third Party Sites accessed through the Site or the App or any Third Party Applications, Software or Content posted on, available through or installed from the Site or App, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by Gifteka. If you decide to leave our Site or App and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from our Site or App or relating to any applications you use or install from the site.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
(a) Termination of Repeat Infringer Accounts. Gifteka respects the intellectual property rights of others and requests that users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, Gifteka has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Service who are repeat infringers. Gifteka may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
(b) DMCA Take-Down Notices.If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to Gifteka’s designated copyright agent at email@example.com:
- The date of your notification;
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
- 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 the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(c) Counter-Notices. If you believe that your User Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
- Your physical or electronic signature;
- A description of the content that has been removed and the location at which the content appeared before it was removed;
- A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal courts in New Jersey and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Gifteka copyright agent, Gifteka may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in Gifteka’s discretion) be reinstated on our Site and App in 10 to 14 business days or more after receipt of the counter-notice.
By posting any User Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to Gifteka a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to host, store, use, reproduce, modify, publish, list information regarding, edit, translate, distribute, 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, if applicable, 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. Gifteka will use this license solely for purposes of operating, developing, providing, promoting, and improving the Service, researching and developing new ones, and making content submitted through the Service available to our business partners for syndication, broadcast, distribution, and publication outside the Service.
Gifteka, Gifteka logos, the Site, the App and other Gifteka trademarks, service marks, graphics and logos used in connection with the Service are trademarks or registered trademarks of Gifteka LLC in the US and/or other countries. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Service.
Any software we provide you may automatically download and install upgrades, updates or other new features. You may be able to adjust these automatic downloads through your device’s settings.
EMAIL MAY NOT BE USED TO PROVIDE NOTICE
Communications made through the Service’s messaging system, will not constitute legal notice to Gifteka or any of its officers, members, employees, agents or representatives in any situation where notice to them is required by contract or any law or regulation.
USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
We may also use your email address, to send you other messages, including information about Gifteka and special offers. You may opt out of such emails by changing your account settings or sending an email to firstname.lastname@example.org or mail to the following postal address:
P.O. Box 1876
Livingston, NJ 07039
Opting out may prevent you from receiving messages regarding Gifteka or special offers.
MODIFYING THE SERVICE AND TERMINATION
Gifteka may add or remove features or functionalities and suspend or stop the Service at any time. You agree that Gifteka may take such actions without providing you any prior notice thereof. Gifteka may stop providing any Service at any time, or impose new or additional limits on your ability to use the Service. For example, we may deactivate your account due to prolonged inactivity or reclaim your username for any reason.
THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, GIFTEKA EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, GIFTEKA MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. GIFTEKA MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF OUR SERVICE AND DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE.
LIMITATION OF DAMAGES; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GIFTEKA, ITS AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH GIFTEKA OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GIFTEKA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL GIFTEKA LLC’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE EXCEED THE GREATER OF $100 USD OR THE AMOUNT YOU PAID GIFTEKA, IF ANY, IN THE LAST 12 MONTHS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
If you have a dispute with one or more users, you release us (and our officers, directors, members, agents, affiliates, representatives, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
ARBITRATION, CLASS WAIVER, AND JURY WAIVER
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH GIFTEKA, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
- Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
- Waiver of Jury Trial. THE PARTIES HERETO AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Instead, the parties are electing to have all claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. If any litigation should arise between the parties over whether to vacate or enforce an arbitration award or otherwise, the parties hereby WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration and instead all claims and disputes will be resolved in a court.
- Confidentiality. No part of the procedures will be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order, or unless required by law. Notwithstanding the foregoing, no party will be prevented from submitting to a court of law any information needed to enforce this arbitration agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
- Small Claims Court. Notwithstanding the foregoing, either party may bring an individual action in small claims court in New Jersey.
You agree that any cause of action related to or arising out of your relationship with Gifteka must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Contact us. Gifteka welcomes comments, questions, concerns or suggestions. Please send any feedback to email@example.com.