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This Agreement is entered into by GifTicket, Inc., its subsidiaries, and affiliates, Merchants and other GifTicket, Inc. Users. This Participating User Agreement covers the Merchant, Purchaser and Recipient as applicable. This Agreement is effective as of the date it is executed by registering, purchasing or receiving a GifTicket through GifTicket, Inc.’s website. Terms and Conditions subject to change at our discretion and without notice.
GifTicket, Inc. offers an electronic gift certificate service through its website located at www.gifticketinc.com. GifTicket, Inc. allows users to send electronic gift certificates, known as GifTickets, purchased by the Purchaser, for a specific Merchant chosen from the site, www.gifticketinc.com , and to be used by the Recipient at that specific Merchant. Merchant and User wishes to participate in the GifTicket program. Accordingly, GifTicket, Inc., Merchant, GifTicket Purchasers and Recipients agree as follows:
For purposes of this Agreement, the terms below shall have the following meanings:2.1 “GIFTICKET, INC. USER”
“GifTicket, Inc. User” means any user of the GifTicket, Inc., including the Merchant, Purchaser or Recipient of a GifTicket, Inc. GifTicket.2.2 “CONFIDENTIAL INFORMATION”
“Confidential Information” means the terms of this Agreement, Merchant Data, and any other information shared with or collected from User by GifTicket, Inc. in connection with the GifTicket program.2.3 “GIFTICKET, INC. CONTENT”
“GifTicket, Inc. Content” means any content owned or licensed by GifTicket, Inc., including such content provided by GifTicket, Inc. to User for use in connection with the Gifticket, Inc. service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.2.4 “MERCHANT CONTENT”
“Merchant Content” means any content owned or licensed by Merchant (other than from GifTicket, Inc.), including such content provided by Merchant to GifTicket, Inc. for use in connection with the GifTicket, Inc. service, including but not limited to trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.2.5 “USER DATA”
Subject to Merchant’s execution of this Agreement via enrolling and GifTicket, Inc.’s acceptance thereof, Merchant shall be permitted to participate in the GifTicket, Inc. service during the term of this Agreement. Merchant shall comply with all terms of this Agreement and GifTicket, Inc. shall have no obligation to issue any GifTickets until Merchant has been accepted as a partner business.3.2 TERMS FOR REDEMPTION OF GIFTICKET (AND PAYMENT TO MERCHANT)
As part of the enrollment process, Merchants are required to assign a bank account for direct deposit of GifTicket redemptions.
Upon receipt of a GifTicket, and Merchant entering GifTicket code and transaction amount for reimbursement into the participating Merchant’s GifTicket account, GifTicket will transfer reimbursement into Merchant’s assigned bank account. Reimbursement is limited to actual transaction amount(s) from said GifTicket’s available value.
To protect against illegal or detrimental activity and to protect Merchants and consumers, GifTicket, Inc. reserves the right, at its sole discretion, to withhold amounts in certain circumstances, including but not limited to frequent purchases for a single recipient using a single credit card and/or large amounts outstanding for a Merchant.3.3 TAXES
Merchant is responsible for determining what, if any, taxes apply to profit from the redemption of GifTickets and for collecting, reporting, and remitting the correct tax to the appropriate tax authority. GifTicket, Inc. is not responsible for determining whether taxes apply or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant.3.4 MODIFICATION OF GIFTICKET, INC. TERMS
GifTicket, Inc. reserves the right, in its sole discretion, to modify the Terms and Conditions for GifTicket, Inc. and Merchant’s participation therein. Such modifications shall be binding on Merchant upon written notice from GifTicket, Inc. in accordance with the notice provisions in Section 9 below. If Merchant notifies GifTicket, Inc. in writing that it rejects such modifications, this Agreement shall automatically terminate. Termination shall be effective on the tenth business day following the date of delivery of the notice as provided in Section 10 below.3.5 LICENSE TO USE GIFTICKET, INC. CONTENT
Once accepted into the GifTicket, Inc., Merchant shall be permitted access to the GifTicket, Inc. application used to process GifTickets. In addition, GifTicket, Inc. may provide other GifTicket, Inc. content to Merchant in connection with GifTicket, Inc. GifTicket, Inc. hereby grants Merchant a limited, nonexclusive, nontransferable, nonsublicensable, revocable license to use the application and other GifTicket, Inc. content solely in connection with GifTicket, Inc. service during the term of this Agreement.3.7 LICENSE TO USE MERCHANT CONTENT
Merchant may provide Merchant Content to GifTicket, Inc. for use in connection with GifTicket, Inc. Merchant hereby grants GifTicket, Inc. a nonexclusive, worldwide, royalty free license to use such Merchant Content in connection with GifTicket, Inc.3.8 COMPLIANCE WITH APPLICABLE LAW
Merchant will comply with the GifTicket Terms and Conditions, as set forth in GifTicket, Inc.’s Terms and Conditions, available on the site, www.gifticketinc.com, and with all state, federal, and other laws applicable to GifTickets. GifTickets expire five years from the date of purchase, do not incur additional service or maintenance fees to the Purchaser or Recipient for any reason. GifTickets have no cash value and are not to be redeemed or exchanged for cash, store credit, gift cards or gift certificates. If lost or stolen, GifTickets may be reprinted from the Recipient’s email, where the GifTicket was originally delivered, or resent from the Purchaser's GifTicket Account or by contacting GifTicket, Inc.® Merchant will allow the Recipient of a GifTicket to redeem the full value of the GifTicket for merchandise or services. Merchant is responsible for keeping track of the value and any unredeemed balance via their Merchant Dashboard.GifTicket, Inc. recommends attaching Recipient’s receipt(s) or writing transaction date and amount, on the back of the individual GifTicket, for the Recipient’s convenience.
Purchaser searches our database of Merchants and purchases one of our GifTickets for a specific Merchant in a desired amount. GifTicket may be adorned with a theme for the occasion and a personalized message. Purchaser confirms selection and checks out, to complete their transaction. Transactions are processed through a gateway provider and are not stored or processed on our servers. We do not store credit card or banking information on our website. GifTicket is then digitally delivered to the intended Recipient, who prints or saves it on their phone and spends it at the Merchant purchased for. It may also be printed, to be mailed or hand delivered4.2 Fees
Purchaser pays a nominal service fee between $2.50 and $5.00. There is no swipe/usage, dormant, replacement or other hidden fees or bank charges.4.3 EXPIRATION DATE and REPLACEMENT
GifTicket is valid for five years from date of purchase. Lost or damaged GifTicket may be reprinted from the customer's dashboard or the original email notification. If there is any issue, contact our office with email address used by the Purchaser or Recipient. We will resend the GifTicket without charging a fee. GifTicket will be valid for the remaining value and from original expiration date.4.4 MATERIAL BREACH /RELIEF
Each GifTicket is assigned a unique identifier code to track value and usage. GifTickets are not to be copied or duplicated for any reason. Any such act constitutes fraud. Any breach of this Agreement by User shall be considered a material breach resulting in irreparable harm to GifTicket, Inc. for which there is no adequate remedy at law. In the event of such a breach, GifTicket, Inc. shall be entitled to injunctive relief, monetary damages, and attorneys fees, in addition to any other appropriate relief.4.5 USERS REPRESENTATIONS AND WARRANTIES
GifTicket, Inc. does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a GifTicket, or any product or service advertised or offered by a third party through the site or GifTicket, Inc. or through any hyperlinked website. GifTicket, Inc. is not a party to any transaction between a GifTicket, Inc. User and a participating Merchant or any third party provider of products or services. Some state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.
Confidential Information, for our purpose defined as, information which concerns or relates to the trade secrets, processes, operations, style of works, or apparatus, or to the production, sales, shipments, purchases, transfers, identification of customers, inventories, or amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization, or other information of commercial value, privileged information, classified information, or specific information (e.g., trade secrets) of a type for which there is a clear and compelling need to withhold from disclosure.
Any breach of this Agreement by Merchant shall be considered a material breach resulting in irreparable harm to GifTicket, Inc. for which there is no adequate remedy at law. In the event of such a breach, GifTicket, Inc. shall be entitled to injunctive relief, monetary damages, and attorneys fees, in addition to any other appropriate relief.
Merchant represents and warrants to GifTicket, Inc., now and throughout the term of the Agreement, as set forth below. Merchant will notify GifTicket, Inc. immediately if any of Merchant’s representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement.6.1 AUTHORITY; QUALIFICATION TO DO BUSINESS
Merchant has the right and authority to enter, and perform its obligations under, the Agreement. Merchant is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification.6.2 TAXES
Merchant is registered for sales and other tax collection purposes in each jurisdiction in which Merchant’s goods or services will be provided.6.3 MERCHANT CONTENT
Merchant owns all rights, titles, and interests in the Merchant Content and has the right to grant the licenses provided in this Agreement. The Merchant Content does not violate any applicable laws or infringe any copyright, trademark, other intellectual property, or any other right of any third party.
The GifTicket, Inc., site, and all related content and materials are provided on an “as is” basis. To the fullest extent permitted by law, they are provided without warranties of any kind, express or implied, including but not limited to warranties of Merchantability, fitness for a particular purpose, title and non-infringement, and any warranties arising from course of dealing or usage of trade.
GifTicket, Inc. does its due diligence to keep the site up-to- date and accurate, but does not warrant that GifTicket, Inc., site, or related content and materials are accurate, complete, reliable, current, or error-free, that it will meet your requirements, will be available at any particular time or location or without interruption. Merchants are responsible to verify their listing information is accurate and up-to- date. Use of GifTicket, Inc. and site is at Merchants’ and Users’ own risk.
GifTicket, Inc. does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a GifTicket, or any product or service advertised or offered by a third party through the site or GifTicket, Inc. or through any hyperlinked website. GifTicket, Inc. is not a party to any transaction between a GifTicket, Inc. User and a participating Merchant or any third party provider of products or services.
Some state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.7.2 LIMITATION OF LIABILITY
In no event shall GifTicket, Inc. be liable for any direct, indirect, consequential, incidental, special, punitive, or exemplary damages, including but not limited to damages for loss of profits, goodwill, or use of property or data resulting from the use, inability to use, or unavailability of the GifTicket, Inc., or any damages resulting from hacking, tampering, or other unauthorized access to or use of the site or GifTicket, Inc.
This limitation of liability applies to the fullest extent permitted by law regardless of the type of claim, whether based on contract, tort, negligence, strict liability, or on any other basis, and even if GifTicket, Inc. has been advised of the possibility of such damage.
Some state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.7.3 FORCE MAJEURE
In addition to, and without limiting, the Limitation of Liability section above, GifTicket, Inc. shall not be liable for any damage, loss, delay in performance, or nonperformance resulting from conditions beyond its reasonable control, including but not limited to, government action, acts of terrorism, acts of war, acts of third parties, strikes, riots or other civil disturbances, accidents, fire, floods, earthquakes and other natural disasters, power outages, and communications and other system failures.
A “Material Breach” includes, but is not limited to, any breach by Merchant or User of Sections 3, 4, 5 or 6 of this Agreement. In the event of a Material Breach, Merchant shall be obligated to reimburse GifTicket, Inc. for any damages suffered by GifTicket, Inc., including any actual, incidental, and consequential damages.8.2 INDEMNIFICATION
Merchant and Users agree to indemnify and hold harmless GifTicket, Inc., and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims by a third party relating to Merchant’s and User’s participation in the GifTicket, Inc. including, but not limited to, claims relating to: (a) any actual or alleged breach of this Agreement by Merchant, including breach of the representations and warranties herein; (b) any claim for sales tax or any other tax obligation arising from the issuance or redemption of a GifTicket or the provision of goods and/or services in connection therewith; (c) any claim by any local, state, or federal government entity for unredeemed GifTickets or unredeemed cash values thereof, or any other amounts under any applicable escheat or abandoned or unclaimed property laws; (d) any failure of Merchant to honor a GifTicket; (e) any infringement of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Merchant, including, without limitation, in connection with the Merchant Content or GifTicket, Inc.’s use thereof; (f) Merchant’s provision of goods, services, or information in connection with the GifTicket, Inc.; (g) Merchant’s use or handling of User Data; and (h) any actual or alleged breach of this Agreement by User, including breach of the representations and warranties herein.
This Agreement shall commence on the Effective Date and continue until terminated as provided herein.9.2 TERMINATION
GifTicket, Inc. may terminate Merchant’s participation in the GifTicket, Inc. at any time and for any reason by providing Merchant written notice of such termination. Termination shall be effective on the date of delivery of the notice as provided herein. GifTicket, Inc. shall remain obligated to redeem all GifTickets purchased prior to termination under this Agreement.
Merchant may terminate participation in GifTicket, Inc. at any time by providing GifTicket, Inc. prior written notice at least ten business days prior to termination. Termination shall be effective on the tenth business day following the date of delivery of the notice as provided herein. This Agreement may terminate automatically as provided in Section 3 above. Merchant shall remain obligated to honor all GifTickets purchased prior to termination under this Agreement.
Users are advised to use GifTickets upon receipt, as we cannot predict or be held liable for Merchants that may go out of business. GifTicket offers no refunds.
GifTicket, Inc. may, in its sole discretion, and without liability to Merchant, User, or any third party, terminate the site or GifTicket, Inc. at any time, for any reason, and without prior notice. This Agreement shall terminate upon termination of GifTicket, Inc. GifTicket, Inc. shall remain obligated to honor all GifTickets issued prior to termination under this Agreement.9.3 RIGHTS AND OBLIGATIONS UPON TERMINATION; SURVIVAL
Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. GifTicket, Inc. shall not be obligated to issue any GifTickets on behalf of Merchant after termination. Merchant shall remain obligated to honor all GifTickets issued on behalf of Merchant prior to termination under this Agreement.
This section and the following additional sections shall survive termination: 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12.
Whenever any notice is permitted or required under this Agreement, it shall be in writing and deemed delivered when: (a) delivered by electronic mail to a party at the email address provided below; or (b) actually received or rejected by a party or, if earlier and regardless of whether actually received or not, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested or (ii) a regional or national overnight courier service, addressed to the party at the address provided below.10.2 NOTICES TO GIFTICKET, INC.
Notices to GifTicket, Inc. must be sent by email to firstname.lastname@example.org .10.3 NOTICES TO MERCHANT
Notices to Merchant must be sent by email from email@example.com .
These Terms shall be governed and construed in accordance with applicable federal law and the laws of the State of Virginia, without regard to its conflict of laws, provisions or any other principles that may provide for the application of the laws of another jurisdiction.11.2 VENUE
You agree that any action at law or in equity relating to this Agreement shall be filed only in Rockbridge County Circuit Court or Rockbridge County General District Court located in Rockbridge County, Virginia, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts in any suit, action, or proceeding arising out of these Terms.
Though we Partner with Merchant to provide this service for them, the parties are independent contractors. Nothing in this Agreement shall be deemed or construed by the parties, nor by any third party, as creating a joint venture, franchise, or agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.12.2 NO THIRD PARTY BENEFICIARIES
This Agreement is not intended, and shall not be construed, to create any rights or remedies in any other party, and no other party shall assert any rights as a third party beneficiary under this Agreement.12.3 ASSIGNMENT
Merchant may not transfer or assign, by operation of law or otherwise, any rights or obligations under this Agreement without GifTicket, Inc.’s prior written consent, and any attempted transfer or assignment without such consent shall be void. GifTicket, Inc. may freely transfer or assign its rights and obligations under this Agreement to any third party without notice or consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.12.4 WAIVER
The failure of a party to exercise any right under, or to enforce any provision of, this Agreement shall not constitute a waiver of such right or provision. Whenever consent to, or approval of, an act by one party is required from the other party, the grant of such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.12.5 SEVERABILITY
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the remaining provisions shall not be affected and shall be interpreted and enforced as if the invalid provision had not been included. Upon such declaration of invalidity, the parties will negotiate in good faith to modify the Agreement to affect the original intent of the parties as closely as possible so that the transactions contemplated under the Agreement are fulfilled.12.6 ENTIRE AGREEMENT
Subject to Sections 3.7 and 5.2, this Agreement sets forth the entire Agreement between the parties relating to Merchant’s and User’s participation in the GifTicket, Inc. and supersedes any prior or contemporaneous understandings or Agreements.12.7 AMENDMENTS
Except as expressly permitted herein, GifTicket, Inc. may make amendments to this Agreement by electronic means.12.8 INTERPRETATION OF TERMS
All parties have had the opportunity to consult with their respective attorneys regarding the terms of this Agreement and are entering into the Agreement voluntarily. No presumption of interpretation shall be made against either party as drafter of the Agreement.12.9 HEADINGS
Headings are for convenience only and in no way limit or otherwise affect the meaning or scope of any provision. Whenever used herein, the singular shall include the plural and the plural shall include the singular.12.10 ELECTRONIC COMMUNICATIONS
Merchant and User agrees that business with GifTicket, Inc. may be done electronically and that the provision of notices, disclosures, and other information electronically satisfies any legal requirement that such communications be in writing.
The parties may make Agreements by electronic means, and this Agreement has the same legal effect as an Agreement entered into on paper. By registering, purchasing or receiving a GifTicket through GifTicket, Inc.’s website, you agree to the Terms and Conditions in this Agreement.
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