These Terms of Service (this ‘Agreement’), constitute a legal agreement between Gifter.ly and you. This Agreement governs your use of the Software and Service (as defined below). By using our software and services you agree to all terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that you are authorized to enter into this Agreement on behalf of such company or other organization.
Last Updated: March 21st, 2023
For purposes of this Agreement, the following terms have the following meanings:
The above language is intended for illustration purposes and should not be interpreted to restrict the scope of destinations that Gifter.ly deems monetizable (e.g. Merchants) nor the forms of monetizing (e.g. Commissions for sales by Customers).
Subject to the terms and conditions of this Agreement, Gifter.ly grants you a non-exclusive, non-transferable, non-sub-licensable license to use the Software and Service on the Website during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. Gifter.ly retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.
You will be solely responsible for all matters related to the content, operation and maintenance of the Website, including, but not limited to: (i) creating and posting Brand descriptions and products on the Website and linking to Brand websites; (ii) the accuracy and appropriateness of all materials posted on the Website (including, but not limited to, all information regarding Brands and brands’ products and/or services); (iii) ensuring that all materials posted on the Website do not infringe or misappropriate any third party intellectual property rights; and (iv) ensuring that all materials posted on the Website are not defamatory or otherwise illegal. You represent, warrant and covenant that you shall comply with applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including without limitation laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003), as well as any applicable Brand terms and conditions and policies, in each case to the extent applicable to your operation of the Website and use of the Service and Software, including, without limitation, those regarding the disclosure of a material relationship inherent in the links on the Website.
You acknowledge and agree that (i) Gifter.ly uses its sole discretion in determining which Brands the Website will be affiliated with, as well as the number of Brands (if any) the Website will be affiliated with; (ii) Gifter.ly may (through the Software and with your permission) re-write links on the Website in order to obtain the best value for you; (iii) Brands set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Service (generally or solely with respect to you) at any time and Gifter.ly will have no control over or liability in connection with any Brand’s decision to do so; and (iv) Brands may at any time send Gifter.ly notice requesting that you remove links or references to brands’ brands, products, services or trademarks and Gifter.ly will communicate this notice to you.
By using our Software and/or Service, you agree that you will not run any paid advertising, paid clicks (CPC) or click spam on a Cost Per Click (CPC) campaign from any of our Brands.
If we find out or think you are using the Service and/or Software in such a way, we reserve the right to terminate your account and/or withhold commissions that were made due to such clicks.
You will indemnify, defend and hold harmless Gifter.ly and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys’ fees and disbursements) resulting from or based upon (i) any claim that the Website infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from your use of the Service or Software. Gifter.ly will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in these terms of service; (c) your use of any Content, whether or not such use is authorized by or violates these terms of service, or applicable law; (d) your violation of any term or condition of these Terms of Service; or (e) your or your employees’ negligence or wilful misconduct.
Gifter.ly will protect all information collected from your use of the Software and the Service in accordance with the Gifter.ly Privacy Policy. You shall disclose to users of the Website and Influencers your privacy practices and policies in accordance with all applicable laws and regulations, including, without limitation, the Federal Trade Commission guidelines regarding disclosure of native advertising, and you acknowledge and agree that as between you and Gifter.ly, it is solely your responsibility to do so. You shall disclose on your Website accurately and adequately, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers. You hereby grant to Gifter.ly a worldwide, non-exclusive right and license to collect, use and disclose non-personally identifiable Usage Data (as defined in the Privacy Policy) and to allow our third party partners to do the same.
THE SOFTWARE AND THE SERVICE ARE PROVIDED ‘AS IS.’ GIFTER.LY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE MERCHANTS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. GIFTER.LY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT GIFTER.LY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.
IN NO EVENT WILL GIFTER.LY BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL GIFTER.LY’S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE COMMISSIONS PAID TO YOU BY GIFTER.LY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS.
This Agreement will commence upon its execution and will continue until terminated by either you or Gifter.ly upon at least five (5) business days prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, Gifter.ly will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Website, all instances of the Software and the Service and promptly return to Gifter.ly, or at Gifter.ly’s request destroy, any and all copies of the Software, Service or other information relating to the intellectual property of Gifter.ly in your possession.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. Any dispute relating in any way to the Gifter.ly Program or Terms of Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Operating Agreement as a court would. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial.
Gifter.ly reserves the right to update or modify this Agreement at any time and from time to time. When Gifter.ly makes changes to this Agreement, the ‘last updated’ date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you of any such modifications by posting a message on the Gifter.ly website. You should periodically review this Agreement. Your continued use of the Software and Service after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without the prior written consent of Gifter.ly. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.