THESE TERMS OF SERVICE CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. ONCE ACCEPTED, THESE TERMS OF SERVICE ARE A BINDING CONTRACT BETWEEN YOU AND US. PLEASE READ THEM CAREFULLY.
THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Last modified: July 18th, 2023
Welcome. Welcome to the Giftogram website (the “Site”). We are a New Jersey corporation legally known as Telenations, Inc. doing business as Giftogram (referred to in these TOS as “Giftogram”, we, us, our or words of similar import). Giftogram provides our Giftogram Products delivery and gift giving services (“Services”) to (a) purchasers of our Giftogram Gift Cards and/or other Giftogram Products subject to terms of service applicable to such purchasers, and (b) recipients of our Giftogram Gift Cards subject to terms of service applicable to such recipients (each, “TOS”). By “purchaser” (defined in these TOS as “Business Purchaser”), we mean a company (such as a corporation, limited liability company, association, other business entity or governmental entity) that is eligible to use our Platform and that purchases or desires to purchase Giftogram Gift Cards and/or other Giftogram Products from us as gifts, incentives or payouts to be given to employees, customers and others in a business context. By “recipient” (defined in these TOS as “Recipient”), we mean an individual or company that is eligible to use our Platform and that has received a Giftogram Gift Card or other Giftogram Product from a Business Purchaser.
Business Purchaser TOS. These TOS apply to Business Purchasers. If you are a “Business Purchaser”, you are in the right place. If you are a “Recipient”, please click here for the TOS applicable to you.
Changes to Terms. Giftogram may revise and update these TOS from time to time in its sole discretion by posting a revised version of these TOS to the Site and sending notice of the new TOS to the email associated with your Giftogram Account. Unless otherwise stated in a particular change, all changes are effective and will apply to you upon the earlier of (a) your first use of the Site with actual notice of the change or (b) 30 days after we post the change to the Site. The “Last Modified legend” appearing at the top of this page indicates when these TOS were last modified.
Acceptance of Changes. Your continued use of the Site following the earlier of receipt of actual notice or posting of revised TOS as described above means that you accept and agree to the changes. You are expected to check these TOS frequently to learn of any changes, as they are binding on you. If you disagree with any change, you are not authorized to use our Platform and must immediately stop using it.
This Introduction constitutes a part of these TOS.
General Eligibility. You must be a valid and legally existing business entity existing under the laws of the state in which you are organized, and the individual acting on your behalf to accept these TOS must be authorized to bind you to these TOS. You are solely responsible for complying with all laws and regulations that are applicable to your business and your use of the Services, including consumer privacy laws and data security laws.
Acceptance of TOS. You must have accepted these TOS to be eligible to use the Site and Services.
Business Purchasers. You must be using our Site for business purposes and not for personal, family, or household purposes.
Sanctions and Other Risks. You may not use the Site or the Services if (a) you are the subject of United States sanctions, (b) you are located in a jurisdiction that is subject to United States sanctions or that otherwise poses reputational, fraud, or legal risk to Giftogram or its Merchant Partners, or (c) doing so otherwise violates any Applicable Law. This prohibition applies to your Recipients as well.
Location of Recipients. The Recipients you choose to receive Giftogram Gift Cards must be located in jurisdictions supported by our Service. In this regard, we reserve the right to suspend or remove access to the Services and our Giftogram Products in any jurisdiction at any time. A list of the jurisdictions where an otherwise eligible Recipient may use our Services can be found here. It is your responsibility to know where your Recipients are located and whether they are eligible to use our Platform. We disclaim all responsibility for a Recipient’s inability to redeem a Giftogram Gift Card or otherwise use our Platform in a jurisdiction we do not serve.
Age Requirement. Our Site and Services are offered and available only to Users who are at least 18 years old. By using the Site, you represent to us that your employees, officers, representatives and other agents accessing the Site on your behalf are of legal age to form a binding contract with us and are authorized to access the Services and to legally bind you to these TOS and all transactions conducted under their respective usernames and passwords.
If you are not at least 18 years old or otherwise do not have the legal capacity to enter into a contract on behalf of the Business Purchaser for which you are acting, you must not access or use our Site or Services.
Sanctions and Other Risks. You may not use the Site or the Services if (a) you are the subject of United States sanctions, (b) you are located in a jurisdiction that is subject to United States sanctions or that otherwise poses reputational, fraud, or legal risk to Giftogram or its Merchant Partners, or (c) doing so otherwise violates any Applicable Law.
By accepting these TOS, you represent to us that you satisfy all of the eligibility requirements listed above in this Section.
In addition to words and phrases defined elsewhere in these TOS, the following words and phrases have the meanings given them as provided below for purposes of these TOS:
“API” is the acronym for Application Programming Interface. APIs are mechanisms that enable two software components to communicate with each other using a set of definitions and protocols.
“Applicable Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, applicable to these TOS or the relationship created hereby.
“Gift Card” means any gift card, loyalty card, incentive card, or other stored value card, whether physical or electronic.
“Giftogram Gift Card” means the right, subject to the applicable TOS, to redeem one or more Merchant Partner’s Gift Cards offered on the Site in an amount (in the aggregate if more than one) equal to the amount of the Giftogram Reward Credit stored therein using a Giftogram Reward Code, whether such right is evidenced by a Giftogram Reward Card or a Giftogram Reward Email.
“Giftogram Products” means a Giftogram Gift Card and any other product offered by Giftogram on the Site.
“Giftogram Reward Card” means a Giftogram Gift Card represented by a physical card.
“Giftogram Reward Code” means the unique digital code printed on a Giftogram Reward Card or included in a Giftogram Reward Email to enable the Recipient of such Giftogram Gift Card to obtain one or more Merchant Partner’s Gift Cards offered on the Site.
“Giftogram Reward Credit” means the stored value of the Giftogram Gift Card. The amount of the Giftogram Reward Credit is displayed on both the purchasing page and the redemption page of the Site.
“Giftogram Reward Email” means a Giftogram Gift Card represented by an electronic transmission such as, but not limited to, email.
“Merchant Partners” means the retailers that have agreed with Giftogram to offer their Gift Cards as redemption options for Recipients.
“Platform” means the integrated online service provided by Giftogram that enables a User to order, view, manage and redeem Giftogram Gift Cards through either a hosted website or API connection to the Service.
4. Description of Services
Giftogram provides Users with the ability to access a turn-key gifting platform for product purchases, web-to-print card customization, and digital delivery services. Giftogram includes Recipient support as well as customer implementation and account management.
Giftogram has contracted with Merchant Partners to offer their Gift Cards on the Site. Our catalog of Merchant Partner Gift Cards provides you and your Recipients with a myriad of choices.
Giftogram is not the manufacturer of any of the goods or provider of any of the services that can be obtained by redeeming a Merchant Partner Gift Card obtained from our Site. Therefore, we make no representation or warranty of any kind regarding these goods or services, including as to whether any of these goods or services is merchantable, fit for a particular purpose or infringes on the rights of any third party. Furthermore, by agreeing to these TOS, you agree to the terms and conditions applicable to any Merchant Partner Gift Card you obtain from the Site, which typically can be found by a reference or link appearing on the back of the Merchant Partner Gift Card.
Giftogram reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part or feature thereof) with or without notice in its sole discretion. We may discontinue the participation of certain of our Merchant Partners on the Site and we expect to add new Merchant Partners from time to time. You agree that Giftogram shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any particular Service, including the termination of any Merchant Partner from the Site or the addition of new Merchant Partners to the Site.
You agree to cooperate with us as we may reasonably require in connection with our providing the Services from our Site. This cooperation may include providing us with information regarding your Recipients. You agree that Giftogram will not be liable for any failure to perform or delay in providing any of the Services if such failure or delay is caused by your failure to timely cooperate with us as contemplated by this Section.
6. Access to the Site
You must first be able to access the Site if you want to use our Services. You are solely responsible for obtaining access to the Site, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment and software necessary to access the Site.
The availability of the Site and the Services may be affected by occurrences beyond Giftogram’s control, such as network outages, hardware failures and incompatibility with third-party hardware or software. We do not guarantee and hereby disclaim all express and implied warranties, that our Platform will always be accessible or otherwise satisfy your requirements and the requirements of your Recipients.
7. Account Registration
User Accounts. Business Purchasers must register with us by creating a valid account with us to use our Site (“Giftogram Account”). You may only have one Giftogram Account and you agree to: (a) provide complete, accurate and current information; (b) promptly update your Giftogram Account information to keep it accurate, current and complete; (c) maintain the security of your Giftogram Account and accept all risks of unauthorized access to your Giftogram Account; (d) promptly notify Giftogram at firstname.lastname@example.org if you discover or otherwise suspect that your Giftogram Account or password has been subject to unauthorized use; and (e) maintain a valid email address where we may deliver information, notifications and disclosures to you.
Account Security. When you choose or are provided with a username, password, or any other piece of information as part of our security procedures, you agree to treat that information as confidential and not disclose it to any other person or entity. You acknowledge that your Giftogram Account is personal to you, and you will not provide any other person or entity with access to the Site using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your Giftogram Account at the end of each session. You should use particular caution when accessing your Giftogram Account from a public or shared computer so that others are not able to view or record your password or other personal information. We have the right to disable any username, password, or other identifier at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these TOS.
Liability Disclaimer. Giftogram is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or any unauthorized use of your Giftogram Account. While Giftogram has endeavored to create a secure and reliable Site, you should understand that the confidentiality of any communication or material transmitted to or from the Site over the Internet cannot be guaranteed. Accordingly, Giftogram is not responsible for the accuracy, reliability, or security of any information transmitted to or from the Site.
Suspension or Deactivation of Account. Except as expressly prohibited by Applicable Law, Giftogram may, in its sole discretion and without notice or liability to you, suspend or deactivate your Giftogram Account or otherwise suspend, restrict or terminate access to, or refuse to provide, any Service at any time, including in the following circumstances:
If we deactivate your Giftogram Account, you or anyone acting under your direction is strictly prohibited from using the Site and our Service.
8. License to Use the Site
License Grant. Subject to the terms and conditions of these TOS and provided you have established an Giftogram Account with us, Giftogram hereby grants to you a non-exclusive, limited, non-transferable license to access and make use of the Site and the Services for lawful business purposes only.
Reservation of Rights. Giftogram reserves all rights, including all intellectual property rights, with respect to the Site and our Services not expressly owned by you or granted to you by these TOS.
Prohibited Conduct. This license granted hereby does not include, and you are hereby prohibited from, (a) any downloading or copying of account information for the benefit of another vendor or any other third party; (b) caching, creating unauthorized hypertext links to the Site or the framing of any content available through the Site; (c) uploading, posting, or transmitting any content that you do not have a right to make available (such as the intellectual property of another party); (d) uploading, posting, or transmitting any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) undertaking any action that imposes or may impose (in Giftogram’s sole judgment) an unreasonable or disproportionately large load on Giftogram’s infrastructure; or (f) any use of data mining, robots, or similar data gathering and extraction tools. In addition, you may not bypass any measures used by Giftogram to prevent or restrict access to the Site. Any unauthorized use by you shall terminate the license granted to you by Giftogram.
License Termination. Giftogram may terminate your license to use the Site and the Services at any time for any or no reason. Any such termination shall be sent by written notice to you, which may be by email to your email address last registered with us. Any such termination shall be effective immediately upon transmission to that email address. No such termination shall operate to release you from any liability to us that at the time of such termination had already occurred or that may occur after such termination because of any act or omission by you occurring prior to such termination.
9. Purchasing Giftogram Gift Cards
Purchase Process. Once you have accessed our Site, your Giftogram dashboard will open. Click on the “Send a Giftogram” button and you will be sent to a page that allows you to select the design for your Giftogram Gift Card. We offer hundreds of designs for dozens of occasions. If you choose to customize your Giftogram Gift Card, you will be given various prompts and options to assist you in doing so. Next, you need to choose a delivery option. Giftogram Gift Cards can take the form of an actual physical card, i.e., a Giftogram Reward Card, or an email, i.e., a Giftogram Reward Email. You then select your currency and gift card from our catalog of choices. You are next given the option to edit the design of any Giftogram Gift Card or add your logo. If you wish to do so, you select “Customize Giftogram” and make your edits. Then you identify the individual or group of Recipients to receive your Giftogram Gift Card. Here you can also personalize your Giftogram Gift Card with a message. Lastly, select your payment method and schedule delivery of your Giftogram Gift Card. Payment must be received before Giftogram Reward Codes are activated.
Giftogram reserves the right to refuse any purchase order for any or no reason unless such reason is unlawful.
Giftogram Account Balance. Your Giftogram dashboard provides you the option of depositing funds to create a prepaid account balance (your “Giftogram Account Balance”). Your Giftogram Account Balance serves as a payment method for purchasing Giftogram Gift Cards. Other payment methods are available if you do not have sufficient funds in your Giftogram Account Balance to pay for the purchase in question at the time of the purchase. These include payment at checkout with a credit card, debit card, ACH or other form of electronic payment. Payments by credit card are subject to our “No Chargeback” terms found in Section 11 of these TOS. Funds in your Giftogram Account Balance are commingled with our general operating funds and do not bear interest.
Fees. With Giftogram, you only pay for what you order. There are no additional fees for printing, digital delivery or account management except for shipping fees for Giftogram Reward Cards and optional greeting card and envelope purchases as described below. A Giftogram Gift Card costs you its face value, whether it takes the form of a Giftogram Reward Card or a Giftogram Reward Email. If you would like a greeting card and/or an envelope to accompany your Giftogram Reward Card, there is a charge, which charge is currently $1.00 per item. Giftogram Reward Cards currently start as low at $5 and there is currently no minimum amount required for Giftogram Reward Emails. You bear the shipping costs for Giftogram Reward Cards except that shipping is free for Giftogram Reward Card purchases of $500 or more. Prices and charges are subject to change by posting on the Site.
By agreeing to these TOS, you authorize Giftogram to charge your Giftogram Account Balance or other payment instrument, including credit card, debit card, check, and ACH-enabled checking or savings account, when you consummate transactions using any of the Services offered by the Site.
Risk of Payment Method. You determine the payment method by which you pay for a Giftogram Gift Card and acceptance of payment by such method shall be at your risk. You agree to bear the risk and cost of chargebacks and adjustments resulting from misuse or unauthorized use of credit or debit cards to purchase Giftogram Gift Cards and the risk and cost for any returned, dishonored or insufficiently funded checks. Giftogram shall have no responsibility or liability for chargebacks, adjustments, or credits, or for returned, dishonored or insufficiently funded checks.
Purchase Limits. Giftogram reserves the right to limit the amount you may be able to spend to purchase Giftogram Gift Cards. Giftogram currently maintains a credit card spending limit. The deposit funds page of our Site tells you the credit card spending limit remaining for your Giftogram Account.
Giftogram Reward Emails (the digital Giftogram Gift Card) expire 12 months from order date. Giftogram Reward Cards (the physical Giftogram Gift Card) expire 18 months from order date. The expiration (if any) of the selected Merchant Partner Gift Card is dependent on the specific Merchant Partner and is identified in that Merchant Partner Gift Card’s terms and conditions, which typically can be found on the Merchant Partner Gift Card certificate. Giftogram has no control over the terms and conditions of any Merchant Partner Gift Card, including any expiration date. If a Giftogram Gift Card has expired or is deactivated, it no longer has any value, cannot be used, and all transactions using the Giftogram Reward Code associated with the expired Giftogram Gift Card will be declined.
11.Refunds and Chargebacks
Refund Policy. Unless you are in default under these TOS, we will refund to you the unapplied cleared amounts in your Giftogram Account Balance at any time upon your written request. We will also refund to you the amount of any Giftogram Gift Card you purchased (less any third-party processor fees charged in connection with payment for such Giftogram Gift Card) prior to that Giftogram Gift Card being sent to and received (actually or virtually) by a Recipient.
Giftogram does not provide refunds for any Giftogram Gift Card that has been received (via email or otherwise) by a Recipient. Giftogram does not provide any refund for any Merchant Partner Gift Card.
Chargeback Policy. You agree to contact us with the aim of resolving any dispute or problem you might have before requesting or demanding a refund or chargeback from your bank or credit card provider in connection with a Giftogram Gift Card purchase. Giftogram reserves the right to correct any errors in service, including but not limited to printing errors, send times, denominations, deliverability, and website interruptions. If we receive a chargeback related to one or more of your Giftogram Gift Card purchases without you first undertaking a reasonable effort to resolve the issue as provided by this Section, Giftogram will consider the chargeback fraudulent and reserves the right to deactivate all Giftogram Reward Codes associated with your order as well as remove all access to your Giftogram Account, in addition to all other remedies available to us at law or in equity. If a chargeback occurs, you agree to ACH or wire funds for the total order amount of the chargeback plus all bank fees and merchant fees resulting from the chargeback. If we cannot informally resolve a dispute with you with respect to non-payment or chargebacks within 60 days after we first learn about the dispute, then you have the right to arbitrate your claim against us as provided by Section 21 of these TOS.
12. Submitted Content
Giftogram does not claim ownership of any materials you make available through the Site. At Giftogram’s sole discretion, such materials may be included in the Service in whole or in part or in a modified form. With respect to such materials you submit or make available for inclusion on the Site, you hereby grant Giftogram a perpetual, irrevocable, non-terminable, worldwide, royalty-free and non-exclusive license to use, copy, distribute, publicly display, modify, create derivative works, and sublicense such materials or any part of such materials. You hereby represent and warrant that any materials you provide do not include anything (including text, images, music or video) to which you do not have the full right to grant the license granted hereby.
13. Intellectual Property Infringement Claims
Giftogram respects the intellectual property rights of others. We have adopted a policy to address copyright and trademark infringement claims arising from the use of our Site. If you believe that you have a claim for infringement of a copyright for material for which you hold the bona fide copyright and that claim arises from a third party’s use of our Site, you must first provide us with a valid notice of your claim if you would like us to act upon your copyright infringement claim. To do that, please access and carefully review the Intellectual Property Infringement Policy. Similarly, if you believe that you have a claim for infringement of a trademark for which you hold a valid trademark registered with the United States Patent and Trademark Office or for which you own United States common law rights that are national in scope and that claim arises from a third party’s use of the Site, you must first provide us with a valid notice of your claim if you would like us to act upon your trademark infringement claim. To do that, please access and carefully review our Intellectual Property Infringement Policy.
14. Site-Provided Email and Postings
The Site may provide Users with the ability to send email messages to other Users and non-Users and to post messages on the Site. Giftogram is under no obligation to review any messages, information or content (“Postings”) posted on the Site by Users and assumes no responsibility or liability relating to any such Postings. Notwithstanding the foregoing, Giftogram may from time to time monitor Postings on the Site and may decline to accept and/or remove any email or Postings. You understand and agree not to use any functionality provided by the Site to post content or initiate communications that contain:
15. Links from the Site
The Site or third parties may provide links to other World Wide Web sites or resources. You acknowledge that Giftogram has no control over such sites and resources and you agree that Giftogram is not responsible for the availability of such external sites or resources, nor does Giftogram endorse or is responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Giftogram shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
16. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT OR ON ANY SITE LINKED TO IT.
YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER GIFTOGRAM NOR ANY PERSON ASSOCIATED WITH GIFTOGRAM MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER GIFTOGRAM NOR ANYONE ASSOCIATED WITH GIFTOGRAM REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, GIFTOGRAM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT GIFTOGRAM AND ITS SUBSIDIARIES AND AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE “GIFTOGRAM GROUP”) SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GIFTOGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (C) UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR ALTERATION OF YOUR ACCOUNT OR DATA. YOU FURTHER AGREE THAT GIFTOGRAM IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OF, ON, OR THROUGH THE SITE OR THE SERVICES, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, AND RIGHTS OF PRIVACY.
GIFTOGRAM’S TOTAL LIABILITY TO YOU FOR BREACH OF CONTRACT AND FOR ANY AND ALL OTHER CLAIMS (INCLUDING TORT CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THESE TOS, THE SITE OR THE SERVICES, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES YOU HAVE PAID TO GIFTOGRAM IN THE TWELVE (12) MONTHS PRIOR TO SUCH ALLEGED BREACH OR OTHER CLAIM.
INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GIFTOGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OF THE SITE, CONTENT OR ANY RELATED SERVICES.
GIFTOGRAM’S TOTAL LIABILITY TO YOU FOR BREACH OF CONTRACT AND FOR ANY AND ALL OTHER CLAIMS (INCLUDING TORT CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THESE TOS, THE SITE OR THE SERVICES, SHALL NOT EXCEED THE VALUE OF THE GIFTOGRAM GIFT CARD RELATED TO SUCH CLAIM(S), AND GIFTOGRAM’S OBLIGATION WITH RESPECT TO SUCH LIABILITY SHALL BE TO REPLACE SUCH GIFTOGRAM GIFT CARD.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Giftogram Group and each of them from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including attorneys' fees) arising out of or relating to your violation of these TOS or your use of the Site, including any content provided by you, your use of any information obtained from the Site, your violation of any law or regulation and infringement by you (or anyone accessing the Site using your Giftogram Account) of any intellectual property or other right of any person or entity.
The contents of this Site, such as text, data, software, photographs, graphics, videos, music, sounds and other information and material (the “Site Material”) is protected by state, national and international law pertaining to copyrights, trademarks, trade secrets, and other proprietary rights. Unless indicated otherwise, all of this content is the property of Giftogram or its affiliates or business partners. You may not sell or modify our Site Material or reproduce, display, distribute, or otherwise use the Site Material in any way for any public or commercial purpose. Use of the Site Material on any other web site, network, print or networked environment is strictly prohibited.
20. Governing Law
These TOS are governed by and construed in accordance with the laws of the State of New Jersey, excluding its conflicts of law provisions.
21. Dispute Resolution; Agreement to Arbitrate
Attempt at Informal Resolution. You agree to use your best reasonable efforts to resolve any dispute arising under these TOS without formal litigation or arbitration. If a dispute or claim arises out of or related to these TOS and we are not able to resolve some or all of the dispute or claim through normal internal discussions within sixty (60) days after such discussions commence, then such dispute or claim will be finally settled by binding arbitration in Parsippany, New Jersey, under the American Arbitration Association Commercial Arbitration Rules (the "AAA Rules") by one or more neutral arbitrators appointed in accordance with the AAA Rules. At the request of either of us, the arbitrator(s) will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) may also award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable costs and fees incurred in connection with any arbitration or related judicial proceeding hereunder. Costs and fees awarded may include American Arbitration Association administrative fees, arbitrator fees, attorneys' fees, court costs, expert fees, witness fees, travel expenses, and out-of-pocket expenses (including such expenses as copying, postage, and courier fees).
Confidentiality of Dispute Resolution. The dispute resolution procedures contemplated by this Section 21 will be as confidential and private as permitted by Applicable Law. In this regard, you and Giftogram both agree to not disclose the existence, content, or results of any mediation, arbitration or other proceeding conducted in accordance with these TOS, and material submitted in connection with such proceedings will not be admissible in any other proceeding; provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitration award and will not bar other disclosures required by Applicable Law.
Class Waiver. To the extent permitted by Applicable Law, any dispute arising out of or relating to these TOS, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Notwithstanding any other provision of these TOS or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of this class waiver may be resolved only by a court and not by an arbitrator. The exclusive jurisdiction of such judicial proceeding shall be in the state and federal courts located within Morris County, New Jersey. By accepting these TOS, you consent to jurisdiction and venue in such forums and waive all objections to jurisdiction and venue in such forums, including objections based upon inconvenience.
No Jury Trial. If for any reason a claim or dispute proceeds in court rather than through arbitration, you and Giftogram knowingly and irrevocably waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these TOS or your use of the Site or the Services or any of the transactions between you and Giftogram arising therefrom.
22. General Terms
Interpretation of these TOS. Any pronoun used in these TOS shall include the corresponding masculine, feminine and neuter forms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “herein,” “hereof,” “hereto,” “hereunder,” and similar terms shall refer to these TOS, unless the context otherwise requires. The words “shall” or “will” are intended to be mandatory in nature and the word “may” is intended to be permissive in nature. The definition of a particular defined term in these TOS will apply to that term and to its various tenses and derivatives.
Waiver. No waiver by Giftogram of any term or condition set out in these TOS shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Giftogram to assert a right or provision under these TOS shall not constitute a waiver of such right or provision.
Electronic Communications. By accepting these TOS or using the Service, you consent to electronic communications as described in the E-Sign Act, which is incorporated into these TOS by this reference.
Assignment. You may not assign or transfer any of your rights or obligations under these TOS without Giftogram’s consent. Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. If you wish to assign any of your rights or obligations under these TOS, you must first email Giftogram at email@example.com to obtain our permission, which may be withheld or conditioned in our absolute discretion. Giftogram may, without your consent, freely assign and transfer any of our rights or obligations under these TOS. These TOS will be binding on, inure to the benefit of, and be enforceable by you and us, our assigns and your permitted assigns.
No Third-Party Beneficiaries. Except for members of the Giftogram Group, no person or entity who is not a party to these TOS will have any right to enforce any term hereof, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this will not affect the rights of any permitted assignee or transferee of any rights or obligations under these TOS.
The Relationship Created by these TOS. Nothing in these TOS will be interpreted to make you and Giftogram partners, joint venturers, principals, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor retained by Giftogram to perform work for you in connection with the Services will be deemed to be your employee, agent, or contractor. Neither you nor Giftogram will have any right, power, or authority, express or implied, to bind the other.
Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TOS OF USE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Severability. If any provision of these TOS is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the TOS will continue in full force and effect.
Force Majeure. Neither you nor Giftogram shall be liable for failure or delay in performing obligations (except for obligations regarding payment of money) set forth in these TOS, and neither you nor Giftogram shall be deemed in breach of such obligations, if such failure or delay is due to natural disasters or any cause reasonably beyond the control of the party in question.
Entire Agreement. These TOS constitute the entire agreement between you and Giftogram and govern your use of the Site, the Services, and your Giftogram Account superseding any prior agreements between you and Giftogram with respect to your use of the Site, Services or your Giftogram Account. You may also be subject to additional terms and conditions that may apply when you use third-party services in conjunction with your use of the Services, and you agree that you will comply with all such additional terms and conditions.
Contact Information. If you have any questions regarding these TOS, the Site, or our Services, please contact Giftogram at firstname.lastname@example.org. You may also contact us by writing to us at our physical address, which is:
77 East Halsey Rd.
Parsippany, NJ 07054