Terms of Use Agreement

1.1. Provision of the Service. Company’s proprietary Services enable customers to purchase, order, obtain, or send or deliver gift cards accepted by participating third parties (“Products”). Subject to the terms and conditions of this Agreement and during the term of this Agreement (for which Customer accesses and uses the Services), Company grants Customer a non-exclusive, non-transferrable and non-sublicensable right for Customer to access and use the Services solely to purchase, order, obtain, or send or deliver the Products for Customer’s personal, non-commercial use only. Customer’s access and use of the Services and procurement of the Products may be subject to additional terms such as the Cardholder Agreement. Customer may visit the Frequently Asked Questions webpage for more information about the Services or Products.

1.2. Updates and Upgrades. The terms of this Agreement will also apply to updates and upgrades of the Services subsequently made available by Company to Customer. Company may update the functionality, user interfaces, and usability from time to time in its sole discretion as part of its ongoing mission to improve the Services. Company reserves the right to, at any time, modify, update, suspend or discontinue the Services without notice to Customer and will not be liable to Customer or any third party for such modification, update, suspension, or discontinuation.

2.1. Customer Responsibilities. Customer will: (a) obtain any permissions and consents required for Company to access Customer Data (defined below) in connection with the Services; (b) be responsible for Customer’s compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify Company of any such unauthorized access or use; and (e) use the Services only in accordance with this Agreement, applicable laws, and government regulations.

2.2. Usage Restrictions. Customer may not: (a) make the Services available to, or use the Services for the benefit of, anyone other than Customer; (b) upload, post, transmit, or otherwise make available to the Services any content that (i) is unlawful, tortious, threatening, harassing, or abusive, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Services; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (f) access the Service to build a similar or competitive product or service or use the Services to gather information unlawfully about Company; (g) remove or modify any markings or identification, proprietary, copyright or other notice of Company’s or its licensors’ proprietary rights; (h) perform any act that would constitute an infringement of intellectual property or other proprietary rights of Company or any third party; or (i) otherwise use the Services for any unlawful purposes.

3.1. Fees, Invoicing, and Payment. The price for the products will be stated in U.S. dollars, and each order incorporates this Agreement by reference. The total price Customer is required to pay will be indicated at the time of purchase. Customer will pay all fees incurred by Customer. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. Customer must fulfill the entire payment obligations at the time of purchase unless the Parties otherwise agree in writing. If any fees owed by Customer have not been paid by the applicable due date, Company reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection. Company reserves the right to reject or refuse to process any orders for Products that, in Company’s sole judgement and discretion, violates this Agreement or applicable law. Customer’s payment obligations may be subject to additional terms under the Cardholder Agreement. The Parties agree the terms of this Agreement and the Cardholder Agreement are intended to supplement and complement each other. In the case of any direct conflict as it relates to Customer’s payment obligations, the terms of the Cardholder Agreement control.

3.2. Taxes. The fees are excusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Company’s net income). Should any payment for the Services provided by Company be subject to withholding tax by any taxing authority, Customer will reimburse Company for such withholding tax. Subject to any applicable laws, the foregoing will not apply to the extent Customer is formed as a not-for-profit or publicly funded state organization and provides Company an applicable tax-exempt certificate.

4.1. Company Property. Subject to the limited rights expressly granted to Customer hereunder, Company reserves and retains, and as between Company and Customer, and Company exclusively owns, all rights, title, and interest in and to the Services, including all software, data compilations, materials related to the Services, all patents, trademarks, copyrights (whether or not any of the foregoing is registered or registerable), and trade secrets related to the Services, and all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein, notwithstanding that portions of the Services may be derived in whole or in part from publicly available sources. No rights are granted by Company hereunder other than as expressly set forth herein. Any other use of the Services, in whole or in part, without permission of the applicable rights holder, is strictly prohibited.

4.2. Trademarks. Company’s name and logo and all Product names are trademarks or service marks of Company or the respective third party (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that Customer shall have the limited right to use the Marks solely as they appear in the Services.

4.3. Feedback. If Customer provides Company any feedback or suggestions regarding the Services, then Customer grants Company an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer.

4.4. Customer Data. Customer grants to Company a worldwide, non-exclusive, sublicensable, transferable, royalty-free, limited term license to access, use, copy, distribute, transfer, perform, and display all data, content, and information submitted by Customer into the Services and the Customer-specific output that is generated by Customer’s use of the Services (the “Customer Data”), and provide necessary access to third party service providers acting on Company’s behalf, such as Company’s hosting services provider, only: (a) to provide, maintain, and update the Services for Customer; (b) to prevent or address service or technical problems or at Customer’s request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Company acquires no right, title, or interest under this Agreement in or to any Customer Data.

4.5. De-identified Data. Customer acknowledges and agrees that Company may, during and after the Term, collect, use and analyze any de-identified information derived from the Customer Data (collectively, the “De-identified Data”) for Company’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services, to help Customer improve efficacy of use of the Services, and to recommend additional or alternative solutions, products, or services to Customer. Company may disclose De-identified Data solely in aggregate form in connection with its business.

5.1. Definition. “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, in writing, or any form or medium, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Customer includes Customer Data, and Confidential Information of Company includes the Services (including its software and content, other than Customer Data), and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.

5.2. Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the term of this Agreement, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control. The Parties acknowledge that the Confidential Information is unique and valuable, and that breaching the confidentiality obligations of this Agreement may result in irreparable injury to the Disclosing Party for which monetary damages alone might not be an adequate remedy. Therefore, the Parties agree that in the event of a breach or threatened breach of the Parties’ confidentiality obligations, the Disclosing Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy without needing to post a bond. Any such relief shall be in addition to and not in lieu of any other appropriate relief.

5.3. Compelled Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure. The Receiving Party further agrees it will disclose only the portions of the Confidential Information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be applied to the disclosed Confidential Information.

7.1. Company Indemnification. Company will defend Customer from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Services as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Company will indemnify Customer for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Company will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data or third party products and content; (b) Customer’s negligence, misconduct, or breach of this Agreement or applicable law.

7.2. Customer Indemnification. Customer will defend Company and its affiliates from and against any lawsuit or proceeding brought by a third party to the extent that any Customer Data actually or allegedly infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, that Customer’s particular use of the Services actually or allegedly violates applicable law, or Customer’s actual or alleged breach of this Agreement, and Customer will indemnify Company and its affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Company’s negligence, misconduct, or breach of this Agreement.

7.3. Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. Customer may not settle any such lawsuit or proceeding without Company’s prior written consent.

7.4. Exclusive Remedy. This Section states Company’s sole liability, and Customer’s exclusive remedy, for any type of claim described in this Section.

8.1. Exclusion of Certain Damages. IN NO EVENT WILL COMPANY HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PARTY FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF, INABILITY TO USE, THE SERVICES OR PRODUCTS OFFERED THROUGH THE SERVICES, LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8.2. Liability . IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE. Customer agrees that in the event of any damage to or loss of the Products caused by Company’s negligence or other fault, Company’s sole obligation, and Customer’s sole remedy, is at Company’s option to either replace the lost or damaged Product(s) or provide a refund for the cost of the purchase price. Customer must submit such claim to Company within thirty (30) days from the date of purchase to be eligible for a replacement or refund.

8.3. Return of Products. Without limiting any remedies available to Company under applicable law or this Agreement, Company reserves the right to demand the immediate return of the Products, to invalidate (without refund) the value of any such Products, and pursue any and all further remedies available to Company in the event Customer breaches this Agreement or violates applicable law.

8.4. Scope. For the avoidance of doubt, the exclusions and limitations set forth in Section 8 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 8 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.

9.1. Term. This Agreement shall be effective as of Customer’s acceptance and will remain in full force and effect until Company terminates Customer’s access to and use of the Services.

9.2. Suspension. Company may suspend Customer’s access to the Services, in whole or in part, if: (a) Customer is using the Services in violation of this Agreement or any applicable law; (b) suspension of the Services is necessary, in Company’s reasonable discretion, to protect the security of the Services or the infrastructure of Company; (c) suspension is required by applicable law; or (d) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are overdue.

9.3. Termination. Company may terminate this Agreement upon written notice to Customer. Upon termination of this Agreement, Customer shall cease to access and use the Services. Company will not be liable to Customer or any third party for any termination of Customer’s access to and use of the Services.

9.4. Survival. The sections titled “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.

10.1. Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action (each, a “Force Majeure Event”). If either Party’s nonperformance hereunder due to a Force Majeure Event persists for more than 30 days, either Party may immediately terminate this Agreement without charge or penalty upon notice to the other Party.

10.2. Dispute Resolution. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Kansas, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. TO THE EXTENT PERMITTED BY LAW, ANY DISPUTE, CLAIM, OR CAUSE OF ACTION IN ANY WAY RELATED TO THE SERVICES SHALL BE RESOLVED BY MANDATORY, CONFIDENTIAL, FINAL, AND BINDING ARBITRATION IN KANSAS ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS CONSUMER ARBITRATION RULES. CUSTOMER AGREES THAT ALL DISPUTES SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THEY ARE WAIVING THEIR RIGHT TO A COURT OR JURY TRIAL AND ANY RIGHT TO LITIGATE OR ARBITRATE ANY CLAIM AS A CLASS ACTION, REPRESENTATIVE ACTION, OR CLASS ARBITRATION. THIS SECTION IS GOVERNED BY THE FEDERAL ARBITRATION ACT. Notwithstanding the foregoing, any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in Johnson County, Kansas and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum.

10.3. Relationship of the Parties; Third Party Beneficiaries. The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.

10.4. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.

10.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.

10.6. Communications. To the maximum extent permitted by applicable law, Customer agrees that all agreements, notices, disclosures and other communications that Company provides to Customer electronically satisfies any legal requirement that such communications be in writing. Company’s electronic communications may be subject to additional terms under the Electronic Communication Agreement. The Parties agree the terms of this Agreement and the Electronic Communication Agreement are intended to supplement and complement each other. In the case of any direct conflict as it relates to this Section, the terms of the Electronic Communication Agreement control. If Customer has any questions or comments about the Services or this Agreement, please contact Company at: support@giftcardmarket.com.

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