GiftPocket User Agreement
Valid as of August 17, 2017
BY USING ANY MATERIALS, PRODUCTS, OR SERVICES OFFERED BY THE COMPANY, INCLUDING BUT NOT LIMITED TO THE COMPANY OR GIFTPOCKET WEBSITES, GIFTPOCKET SERVICES, OR ANY RELATED OR AFFILIATED THIRD PARTY MATERIALS, YOU REPRESENT YOU HAVE READ THE AGREEMENT IN ITS ENTIRETY, AND YOU AGREE TO AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT. When you buy or sell a gift card using the GiftPocket Services, the transaction is processed, completed and governed by Raise Marketplace, Inc.©.
PLEASE READ: Class Action Waiver; Waiver of Right to Jury
TO THE EXTENT ALLOWED BY LAW, YOU AGREE TO IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY OR OTHER COURT TRIAL (OTHER THAN SMALL CLAIMS COURT) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
This Agreement contains a mandatory arbitration clause. Please read paragraph III (l) . This clause eliminates your right to take a matter to court except for small claims court.
I) TERMS OF GIFTPOCKET SERVICES
GiftPocket is an app that allows you to store gift cards (“Gift Cards”) typically used at bricks and mortar retailers and websites. GiftPocket also offers an easy way to buy and sell Gift Cards through its business partners. Users may login to the app to store Gift Card information, and view their available account balance. The Company is not a merchant, vendor, issuer, financial institution, buyer, seller, or otherwise a party to any users’ transactions. The Company is not the issuer, buyer, or seller of any of the gift cards used or available through GiftPocket Services and is not related to any merchant whose trademarks, gift cards, or materials appear on, without limitation, the Company’s website, materials, or any materials relating to the GiftPocket Services. GiftPocket users retain title and/or all ownership of and rights and licenses to Gift Cards displayed in the GiftPocket app. We may add, change, suspend or eliminate any or all GiftPocket Services with or without notice at any time.
a. Eligibility and Account Registration
b. Safety; Your Interactions with other Users
The Company is not responsible for the conduct of any user on or off of the GiftPocket site or platforms or any Third Party site regardless of its affiliation with the Company or GiftPocket Services.
II) THIRD PARTY AGREEMENTS
GiftPocket may provide links or services to including, but not limited to: third-party websites, apps, mobile services or other third-party services and may also display, link to or otherwise make available third-party content, data, information, events, apps or materials. GiftPocket does not control these Third Parties and makes no representations or warranties of any kind, regarding any 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. Your use of Third Party materials is at your own risk.
III) GENERAL TERMS AND CONDITIONS
a. Notices to You
You agree that Company may provide notice to you by posting it on our website. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website.
b. Calls and Text Messages to You
By providing Company a telephone number (including a wireless/cellular telephone), you consent to receive autodialed and/or prerecorded message calls from Company at that number should the need arise. You also consent to receive text messages at that number. If you withdraw your consent, GiftPocket will not cancel your account or change your services in any way. This section does not affect consent for push notifications or in app messages which you can control from the settings on your mobile device.
c. Intellectual Property
“GiftPocket.com,” “GiftPocket,” “GiftPocket Services” and all related logos, products and services described in our website and mobile applications are either trademarks or registered trademarks of Company or its licensors. You may not copy, imitate or use them without Company’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Company. You may not copy, imitate, or use them without our prior written consent. Certain other product or service names, brand names and company names may be trademarks of their respective owners.
e. Restricted Activities
In connection with your use of our website, your account, or the GiftPocket Services, or in the course of your interactions with Company, a user or a Third Party, you will not:
- breach this Agreement or any other Agreement that you have entered into with Company (including a policy);
- violate any law, statute, ordinance, or regulation;
- infringe Company’s or any Third Party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- act in a manner that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
- provide false, inaccurate or misleading Personal Information;
- send or receive what we reasonably believe to be potentially fraudulent information;
- refuse to cooperate in an investigation or provide confirmation of your identity or any Personal Information you provide to us;
- use an anonymizing proxy;
- control an account that is linked to another account that has engaged in any of these restricted activities;
- control or possess more than one account without authorization from Company;
- facilitate any viruses, Trojan horses, worms or other malware computer programming routines that may damage, detrimentally interfere with, bypass, surreptitiously intercept or expropriate any system, data or information, or that may monitor or copy our website or app without permission; or
- take any action that may cause us to lose any of the services from our internet service providers, payment processers or other suppliers.
f. Your Liability
Under this Agreement, you are solely responsible for complying with all applicable federal, state and local laws and regulations. You are responsible for all fees, fines, penalties and other liability incurred by Company, a GiftPocket user, or a Third Party caused by or arising out of your breach of this Agreement, and/or your use of the GiftPocket Services. You agree to reimburse Company, a user, or a Third Party for any and all such liability.
g. Actions by Company
At any time, for any reason and without notice, we may:
- close, suspend, or limit your access to your account or the GiftPocket Services;
- communicate with Third Party merchants about you or your account;
- update inaccurate information you provided us;
- refuse to provide our GiftPocket Services to you in the future; and
- if necessary, take legal action against you.
h. Law and Forum for Disputes; Arbitration
IMPORTANT. PLEASE READ THIS SECTION.
If a dispute arises between you and Company, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Disputes between you and Company regarding our services may be reported by emailing us at the following email address: support@GiftPocket.com.
This User Agreement shall be governed in all respects by the laws of the State of Ohio, without regard to conflict of law provisions, except to the extent that federal law applies.
ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS USER AGREEMENT MUST BE ASSERTED INDIVIDUALLY IN BINDING ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE AAA SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES OR A SIMILAR SUCH SERVICE. The Arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. To the extent allowed by applicable law, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this User Agreement including, but not limited to, any claim that all or any part of this User Agreement is void or voidable. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
There are only two exceptions to this agreement to arbitrate. First, if we reasonably believe that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any court of competent jurisdiction. Second, any claim of $500 or less may, at the option of the claiming party, be resolved in small claims court in Columbus, Ohio if the claim and the parties are within the jurisdiction of the small claims court. For these two exceptions, you agree to submit to the personal jurisdiction of the courts located within Columbus, Ohio to litigate such claims or disputes.
i. Disclaimers of Warranty; Damages Exclusions
Unless otherwise prohibited by law, you assume all responsibility for your use of the GiftPocket Services and use them at your own risk. To the fullest extent permissible under applicable law, all such representations, warranties, guarantees and conditions are disclaimed, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, noninfringement of intellectual property rights, or other terms which might otherwise be implied by statute, common law or in equity. Company does not warrant that the services will be uninterrupted or error-free, that defects will be corrected, or that the services, or that servers that process information for the services, are free of viruses, bugs or other harmful components. Company makes the following disclaimers set forth in this section: the GiftPocket Services are provided on an “as is,” “as available” and “with all faults” basis, without any representations, warranties, guarantees, or conditions of any kind, express, implied or statutory, including, but not limited to, any warranty as to the use or operation of the services, or the information, content or other materials related to the services, whether provided by Company, any Third Party, or any of the Covered Third Parties. Neither Company, nor any Third Party, nor any of the Covered Third Parties warrant nor make any representations regarding the use or the results of the services in terms of correctness, accuracy, timeliness, reliability, or otherwise. You assume the entire cost of all necessary maintenance, repair, or correction to any equipment you use in accessing any of the services, including, but not limited to, your mobile phone or other device.
COMPANY IS NOT LIABLE FOR THE CONSEQUENCES OF YOU CHOOSING TO SHARE ANY PAYMENT DETAILS ON SOCIAL MEDIA OR WITHIN THE GIFTPOCKET SERVICES, AND YOU AGREE TO HOLD COMPANY HARMLESS AND INDEMNIFY COMPANY FROM ANY LIABILITY arising from the actions or inactions of any external social media network in connection with the permissions you grant to the external social media network.
None of Company, any Third Party or any of their respective affiliates, vendors, agents or suppliers will be liable for, and you agree not to seek against any of the foregoing, any damages of any kind arising from the use of the services, including, but not limited to any damages resulting from the use of service, loss of use of the service, lost data, lost profits, or business interruption arising out of or in any way connected with the use of the services, any delays in the services, or the inability to use the services, or any portion thereof, whether based on contract, tort, negligence, strict liability or otherwise, even if all or any of us have been advised of the possibility of such damages and even if any remedy fails of its essential purpose. Company cannot ensure that any party you are dealing with will complete the transaction or is authorized to do so. Company makes no representations or warranties regarding the amount of time needed to complete processing.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OF CERTAIN DAMAGES, SO THE ABOVE DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
j. Limitations on Liability
Except as otherwise EXPRESSLY provided in this agreement, and to the extent permissible under applicable law, Company’s cumulative liability to you for any claims or damages arising out of or related to your use of the GiftPocket Services shall not exceed the greater of the fee you paid to Company for the use of the GiftPocket Services, if any, or $1.00 USD.
These limitations on liability apply to: anything related to a service or any application or content made available through any such service; and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law. These limitations on liability also apply even if: repair, replacement or a refund for the service does not fully compensate you for any losses; or Company, any Third Party knew or should have known about the possibility of the damages.
These limitations on liability will apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose. Some states or other jurisdictions do not allow the limitation of liability so the foregoing limitations may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
k. License Grant
You agree to defend, indemnify and hold harmless Company and its parent, affiliates, officers, directors and employees from any claim or demand (including any damages, losses, expenses and attorney’s fees resulting therefrom) made or incurred by any Third Party due to or arising out of your breach of this Agreement and/or your use of the GiftPocket Services.
m. Release of Company
If you have a dispute relating to buy and sell transactions for Gift Cards, Company is not responsible for any such dispute and you hereby release Company (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
n. Modification of Terms
We may amend this Agreement at any time by posting a revised version on our website. By using the GiftPocket Services after a new Agreement has been posted, you agree to the revised Agreement.
In the event of termination of this Agreement or the GiftPocket Services, the terms in this Agreement that by their nature are continuing shall survive such termination, including but not limited to the disclaimers and limitations of liabilities.
p. Force Majeure
We shall not be liable for any delay or failure in the performance or in delivery or shipment of materials (including, but limited to buying and selling Gift Cards), or for any damages suffered by you by reason of such delay or failures, directly or indirectly caused by or in any manner arising from or connected with acts of God, acts of public enemies, riots, strikes, acts of governmental agencies, labor difficulties, failure of our power, telecommunications or other suppliers, delays in securing or shortages of raw materials, breakdown or destruction of any system or equipment, or any other cause or causes beyond our control, whether or not similar to those enumerated herein.
If any provision of this Agreement is deemed to be illegal or unenforceable, such provision shall be enforced to the extent possible, and any remaining illegality or unenforceability will not affect the validity or enforceability of any other provisions of this Agreement, which together will be construed as if such illegal or unenforceable provision had not been included in this Agreement.
HOW TO CONTACT US
If you have questions or concerns regarding this Agreement or your GiftPocket account, or any feedback that you would like us to consider, please contact us at: firstname.lastname@example.org.