Legal

TERMS OF SALE

As of 10/15/2012

PLEASE READ THESE TERMS OF SALE ("TERMS") CAREFULLY. THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND GIFTFLY LLC, ITS SUBSIDIARIES, AND AFFILIATES (“GIFTFLY”). BY PURCHASING A GIFT CARD THROUGH GIFTFLY’S WEBSITE, LOCATED AT WWW.GIFTFLY.COM ("SITE"), OR BY USING A GIFTFLY GIFT CARD, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS IN EFFECT AT THE TIME OF PURCHASE OR USE.

ALL PURCHASES AND USE OF THE SITE ARE EXPRESSLY CONDITIONED ON YOUR AGREEMENT TO THESE TERMS AND TO THE TERMS SET FORTH IN THE TERMS OF USE, PRIVACY POLICY, AND ACCOUNT HOLDER AGREEMENT. IN ADDITION TO THESE TERMS, PLEASE ALSO READ THE TERMS OF USE, PRIVACY POLICY, AND ACCOUNT HOLDER AGREEMENT. THE TERMS OF USE AND PRIVACY POLICY ARE INCORPORATED BY REFERENCE HEREIN.

• 1. GiftFly Service

  GiftFly is a gift card service ("GiftFly Service") that allows you to send and receive electronic gift cards. GiftFly gift cards may be purchased through the Site using PayPal or a Visa, MasterCard, American Express, or Discover credit card. Depending on the kind of gift card you select, the recipient will receive your gift as a payment in their PayPal, bank, or credit card account to be redeemed in any way they choose ("Universal Gift Card") or to be used at a specific participating business listed on the Site ("Participating Merchant Gift Card").

  GiftFly is not a bank, money services business ("MSB"), money transmitter (“MTB”), or issuer of stored value products, as defined by the United States Department of Treasury. GiftFly works with Four Oaks Bank & Trust Company ("Banking Partner"), and the Banking Partner's agents, to provide the GiftFly Service.

• 2. Your Account

  When you purchase a GiftFly gift card, you authorize GiftFly’s Banking Partner to set up a special purpose account on your behalf ("Account"). Your Account will be subject to the Account Holder Agreement between you and the Banking Partner.

  • 2.1 Purpose of Account; Designation of GiftFly as Agent

    The Account will be a one-time use account, the purpose of which is to hold funds received from you until the funds are delivered to the recipient of your GiftFly gift card as directed by you or returned to you. You may use the Account only in connection with the GiftFly Service. You many not use the Account for any illegal purpose or in connection with any online gambling transaction.

    By using the GiftFly Service, you designate GiftFly as your agent for purposes of providing instructions to the Banking Partner, or its agents, regarding the transfer and disbursement of funds in your Account. GiftFly may act upon your instructions without any further inquiry. You authorize GiftFly to provide information about your Account to make transfers and disbursements in accordance with your instructions.

  • 2.2 Eligibility

    Account holders must be at least 18 years old, or 19 years old if resident in a state where that is the age of majority, and be a citizen or legal resident of the United States.

  • 2.3 Accuracy of Account Information

    To create your Account, you may be required by law to provide certain identifying information, such as your name, address, date of birth, social security number, or other information. You are responsible for providing truthful, accurate, current, and complete information, and for updating information as necessary.

  • 2.4 Recipient Information

    To send a GiftFly gift card, you will be required to provide information regarding the recipient of funds in your Account, such as name, email address, Facebook user identification number, or other information. You are responsible for providing accurate and complete information. If you do not provide accurate and complete information, your transaction may not be completed.

  • 2.5 Account Balances and Limits

    You are responsible for keeping track of your Account balance. GiftFly will send electronic confirmation of your transactions to the email address you provide when you sign up for the GiftFly Service. You must notify GiftFly of any erroneous or unauthorized transactions or activity connected with your Account in accordance with the Account Holder Agreement. GiftFly or its Banking Partner may impose limits on the amount of money that you can transfer through your Account.

  • 2.6 Closure of Account; Dormant Accounts; Termination of Access

    You may direct that your Account be closed at any time and any funds remaining in the Account, after deduction of any accrued charges or fees, be returned to you in accordance with the Account Holder Agreement.

    Dormant Accounts may be closed in accordance with the Account Holder Agreement. Please refer to the Account Holder Agreement for additional information regarding closure of your Account.

    In addition, GiftFly reserves the right, in its sole discretion and without liability to you or any third party, to terminate your access to the Site and the GiftFly Service, with or without cause, and with or without notice.

• 3. Payment Methods; Acceptance of Order

  GiftFly accepts PayPal and Visa, MasterCard, American Express, and Discover credit cards. By purchasing a GiftFly gift card, you represent and warrant that you are authorized to use the designated credit card or PayPal account and authorize us to charge your purchase. If the credit card or PayPal account cannot be verified, is invalid, or is otherwise not acceptable, your purchase may be suspended or cancelled automatically.

  Your placement of an order does not necessarily assure that we will accept your order. GiftFly reserves the right, in its sole discretion, to refuse any order. In addition, before accepting your order, GiftFly may require additional information if you have not provided all of the information required to complete your order.

• 4. Gift Card Terms and Conditions

  By using the GiftFly Service you are agreeing to the terms and conditions of the GiftFly gift card. There are no service or maintenance fees to the buyer or recipient for a Participating Merchant Gift Card. There is a one time, per card service fee to the purchaser of $0.99, plus 4.99% of the value of the card, for the purchase of a Universal Gift Card. In addition, Universal Gift Cards may be subject to an account maintenance fee of $4.99 per month if not redeemed within 12 months of the date of issue. GiftFly gift cards do not expire, are not redeemable for cash unless required by law, and will not be replaced if lost or stolen unless required by law.

  GiftFly is not responsible for any failure by a Participating Merchant to honor a Participating Merchant Gift Card. Participating Merchants are solely responsible for honoring their Participating Merchant gift cards.

• 5.Fees

  • 5.1 Participating Merchant Gift Cards

    There are no service or maintenance fees for the purchase or use of a Participating Merchant Gift Card.

  • 5.2 Universal Gift Cards

    GiftFly charges a one time, per card service fee of $0.99, plus 4.99% of the value of the card, at the time of purchase. This fee is not refundable and will not be applied towards the balance in your Account.

    In addition, Universal Gift Cards may be subject to an account maintenance fee of $4.99 per month if not redeemed within 12 months of the date of issue. If your account has a zero balance and no activity for 12 or more months, it may be deemed inactive and closed.

    Service and maintenance fees may vary over time.

• 6. Cancellations and Refunds

  If you are unhappy with a gift card you have purchased and the gift card has not been redeemed, GiftFly will refund the amount of your purchase, less any purchase fees, to you. Email info@giftfly.com to request cancellation of your order and a refund.

• 7. Risk of Loss

  GiftFly is not responsible if a GiftFly gift card is lost, stolen, destroyed, or used without your or the recipient’s permission.

• 8. Taxes

  GiftFly is not responsible for determining any tax reporting requirements that may apply to you as a result of your purchase or use of a GiftFly gift card. You are solely responsible for determining and complying with any such requirements.

• 9. Mobile Charges

  GiftFly may permit you to access and use the GiftFly Service or your Account through your mobile telephone. GiftFly is not responsible for any data or other charges or fees that your telephone service provider may charge in connection with such access or use.

• 10. User Identification and Password

  To use the GiftFly Service, you may be required to provide a user identification and password. You are responsible for maintaining the security of your user identification and password by not sharing this information or access to your Account. You are responsible for all purchases and other activities that occur in connection with your Account. You must notify GiftFly immediately if you learn of or suspect any security breaches or unauthorized activity in connection with your Account. Please refer to the Account Holder Agreement for additional information regarding your obligations regarding erroneous or unauthorized activity in connection with your Account.

• 11. Privacy

  Your privacy is important to GiftFly. Please review our Privacy Policy to learn about our use and disclosure of your information. Privacy Policy

• 12. LIMITATION OF LIABILITY

  IN NO EVENT SHALL GIFTFLY BE LIABLE TO YOU OR ANY THIRD PARTY 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 GIFTFLY SERVICE, OR ANY DAMAGES RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR THE GIFTFLY SERVICE.

  IN ADDITION, GIFTFLY’S TOTAL CUMULATIVE LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO GIFTFLY FOR THE GIFTFLY SERVICE DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE.

  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 GIFTFLY 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 TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.

• 13. Force Majeure

  In addition to, and without limiting, the Limitation of Liability section above, GiftFly shall not be liable for any damage, loss, delay, or unavailability of the Site or the GiftFly Service 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.

• 14. DISCLAIMERS

  THE SITE, GIFTFLY SERVICE, AND ALL CONTENT AND SERVICES MADE AVAILABLE THROUGH THE SITE, ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, THE SITE AND GIFTFLY SERVICE 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.

  GIFTFLY DOES NOT WARRANT THAT CONTENT ON THE SITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, THAT THE GIFTFLY SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SITE OR THE GIFTFLY SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR WITHOUT INTERRUPTION, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF THE SITE AND GIFTFLY SERVICE IS AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PROPERTY OR DATA THAT MAY RESULT.

  GIFTFLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE PURCHASED USING A GIFTFLY GIFT CARD, OR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE GIFTFLY SERVICE OR THROUGH ANY HYPERLINKED WEBSITE. GIFTFLY IS NOT A PARTY TO ANY TRANSACTION BETWEEN YOU AND 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 TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.

• 15. Indemnification

  You agree to indemnify and hold harmless GiftFly, and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims by a third party arising from your use or misuse of the Site or GiftFly Service, including any actual or alleged violation of these Terms or breach of your obligations thereunder.

• 16. Dispute Resolution

  Any dispute arising out of or related to these Terms or your use of the Site or GiftFly Service shall be submitted first to non-binding mediation. If the dispute is not resolved through mediation then, upon the election of either party, the dispute shall be submitted for binding arbitration. The arbitration shall be administered by, and pursuant to the rules of, the American Arbitration Association.

• 17. Restriction on Class Action Claims

  Any dispute shall be resolved on an individual basis. There shall be no right or authority to have any dispute resolved on a class action basis or in a purported representative capacity on behalf of the general public or others allegedly similarly situated.

• 18. Governing Law; Venue

  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. You agree that any action at law or in equity arising out of or relating to these Terms or your use of the Site or the GiftFly Service shall be filed only in state or federal courts located in Fairfax 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

  .

• 19. Entire Agreement

  These Terms, and the Terms of Use and Privacy Policy incorporated by reference herein, set forth the entire agreement between you and GiftFly with respect to the Site and the GiftFly Service and supersede any prior or contemporaneous understandings or agreements. Your use of the Site and GiftFly Service are also subject to the Account Holder Agreement between you and GiftFly’s Banking Partner.

• 20. Severability

  If any provision of these Terms 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.

• 21. Survival

  This section and the following additional sections shall survive termination of these Terms and your use of the GiftFly Service: 2 through 10, 12 through 20, 22 through 29.

• 22. Modification of Terms

  GiftFly may, in its sole discretion and without liability to you or any third party, modify these Terms at any time by posting revised Terms on the Site. The revised Terms will become effective at the time of posting and will apply to transactions initiated after the posting date. In the event that you do not agree to the revised Terms, your sole and exclusive remedy is to terminate your use of the GiftFly Service. Your continued use of the GiftFly Service constitutes your agreement to the revised Terms.

• 23. Modification or Termination of Site or Services

  GiftFly may, in its sole discretion and without liability to you or any third party, modify or terminate the Site or GiftFly Service at any time without prior notice.

• 24. Waiver

  The failure of GiftFly to exercise any right under, or to enforce any provision of, these Terms shall not constitute a waiver of such right or provision.

• 25. Assignment

  You may not transfer or assign your rights or obligations under these Terms without GiftFly’s prior written consent, and any attempted transfer or assignment without such consent shall be void. GiftFly may transfer or assign its rights and obligations under these Terms to any third party without notice or consent and that the Terms shall remain in full force upon such transfer or assignment. Subject to the foregoing, these Terms shall be binding on and inure to the benefit of the parties and to their successors and permitted assigns.

• 26. No Third Party Beneficiaries

  These Terms are 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 these Terms.

• 27. Notices

  In addition to the electronic communications authorized under the Electronic Communications section below, notices and other communications to you may be made by mail, email, postings on the Site, or other reasonable means. Notices to GiftFly must be sent by mail to: GiftFly LLC, 419 Lafayette Street, New York, NY 10003, Attn: Legal.

• 28. Electronic Communications

  You agree that communications from GiftFly to you may be sent electronically. We may communicate with you by e-mail or by posting notices on the Site. You agree that all notices, disclosures, agreements, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

• 29. Miscellaneous

  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.

PRIVACY POLICY

As of 10/15/2012

This Privacy Policy describes the privacy practices of GiftFly LLC, its subsidiaries, and affiliates (“GiftFly”) in connection with its website located at www.giftfly.com (“Site”). Please review it carefully. Your use of the Site constitutes your agreement to this Privacy Policy. Please also review the Terms of Sale, Terms of Use, and Account Holder Agreement which, in addition to this Privacy Policy, also govern your use of the Site and GiftFly’s services.

What Kinds of Information Does GiftFly Collect?

• Personally Identifiable Information

  Personally Identifiable Information (“PII”) is information that identifies a specific user. It may include your name, address, e-mail address, telephone number, social security number, credit card information, PayPal or other payment service account information, social network account information such as Facebook account information, or any other information that specifically identifies a user.

  When you engage in certain activities on the Site, GiftFly must collect PII from you to complete your order or otherwise process your transaction. Activities that require GiftFly to collect PII include creating a GiftFly account, purchasing a GiftFly giftcard, redeeming a GiftFly gift card, submitting content (such as comments, reviews, photographs, or videos) to the Site, contacting GiftFly with a question or concern, entering a contest or sweepstakes, completing a survey, and redeeming or signing up for a special offer. You may access the Site without engaging in any of these activities. However, if you choose to engage in any of these activities, GiftFly will collect PII from you. Some of the PII is mandatory and some is optional. Mandatory PII is indicated with an asterisk.

• Information About How You Use The Site

  Like most websites, GiftFly uses cookies, web beacons, embedded scripts, and similar technologies to collect information about how you use the Site. The information collected may include information that your browser or device sends to our servers when you visit the Site, such as your IP address (which may tell us generally where you are located), the type of browser or device that you used to access the Site, the web page that led you to the Site, the search terms that you typed into a search engine to find the Site, and the web page you went to after leaving the Site. The information collected may also include the web pages you visited on the Site, the advertisements that were displayed, and the advertisements or links that you viewed or clicked on. GiftFly’s servers may collect similar information while you are logged on to the Site. The information collected may be anonymous or it may be associated with you.

  Emails that GiftFly sends to you may include a web beacon or similar technology that tells GiftFly whether you have received or opened the email or clicked on a link in the email.

  The Site may include content, links, or buttons from third party companies. GiftFly may collect information about your use of these features. In addition, when you view or use a feature from a third party company, or the web page on which it appears, information from your browser may be sent to the third party company. You should review the third party company’s privacy policy carefully to learn about its privacy practices.

• Information From Social Networking Services

  If you access the Site from a social networking service such as Facebook, we will collect the information automatically provided by the social networking service under its applicable policies and any additional information that you permit the service to provide. GiftFly does not control these social networking services and is not responsible for the information they provide. Before accessing the Site from a social networking service, you should review its privacy policy carefully to learn about its privacy practices.

How Does GiftFly Use The Information That It Collects?

GiftFly uses the PII and other information that it collects to activate and operate your GiftFly account, authenticate and identify you for security and other purposes, fulfill your orders for products and services, communicate with you about your account or orders, respond to your feedback, questions, or concerns, contact you about new products or services or for other marketing purposes, administer contests, sweepstakes, surveys, and special offers, diagnose and troubleshoot problems with the Site, improve your experience with the Site, tailor advertising content to your interests, track information you have provided to us, such as your user preferences and preferences regarding receiving emails and other communications, and to analyze site usage for market research and other purposes.

GiftFly may also use the PII and other information that it collects to enforce its Terms of Use, Terms of Sale, or Privacy Policy, resolve disputes with you or a recipient of a GiftFly gift card sent by you, prevent fraud or infringement of intellectual property rights, cooperate with law enforcement, and to comply with the law.

Will GiftFly Share My Information?

GiftFly may share your name, contact information, and personal message with the recipient of your gift card and specific businesses that have contracted to offer GiftFly services.

GiftFly works with other companies that help it run its business. These companies (“Service Providers”) may provide services to GiftFly such as processing payments, delivering customer or technical support, sending emails on GiftFly’s behalf, fulfilling orders, administering contests, sweepstakes, and special offers, analyzing Site usage and other data, and running online advertising campaigns that display advertisements on the Site or on third party websites. These Service Providers may have access to your PII and other information that GiftFly collects, but they are not permitted to use it for their own purposes.

GiftFly may share, including with third party business partners and advertisers, information that does not specifically identify you, such as statistical information about usage of the Site and other aggregate information.

GiftFly may share your PII and other information that it collects:

• If it is required to do so in response to a subpoena or a court order or to comply with the law.
• To enforce its Terms of Use, Terms of Sale, or Privacy Policy, or to resolve a dispute with you or a recipient of a GiftFly gift card sent by you.
• If it has a good faith belief that disclosure is necessary to prevent fraud, intellectual property infringement, to prevent or respond to an actual or threatened security breach, or to otherwise protect the rights or safety of others.
• If GiftFly is merged with or acquired by another company, or if the Site or all or a substantial portion of GiftFly’s assets is acquired by another company, your PII and other information may be transferred as part of the transaction.
• If you have agreed to the sharing.

Some portions of the Site may permit you to submit content for other users to see, such as comments, reviews, photographs, and videos. Content submitted to these portions of the Site will be public and not subject to this Privacy Policy. Please be careful when you submit content to these portions of the Site and do not submit anything that you do not wish to be public. Note that when you post content to these portions of the Site, your name and email address may be displayed.

How Does GiftFly Protect The Information It Collects?

GiftFly understands the importance of protecting your PII. GiftFly takes reasonable physical, administrative, and technical steps to secure the PII you provide. For example, GiftFly secures its facilities, network, and servers, encrypts financial information and transmits it securely, and restricts access to PII to authorized personnel only. However, no security controls are 100% effective and GiftFly cannot guarantee or warrant the security of your PII.

Your Privacy Choices

• Promotional emails

  If you do not want to receive GiftFly promotional emails you may opt out by clicking the “Unsubscribe” link at the bottom of any GiftFly promotional email. You can also opt out at any time by contacting us at www.giftfly.com/privacy and telling us that you do not wish to receive promotional emails.

  There are certain emails that we must send to you regarding your account, account activity, and other business operations. You may not opt out of these emails.

• Cookies

  You can control how websites use cookies by configuring the privacy settings in your browser. Please refer to your browser help function to learn more about your browser’s privacy settings. Note that if you disable cookies entirely, the Site may not function properly.

Updating Or Correcting Your Information

You can update or correct your PII by accessing your account on the Site. You can also contact us at www.giftfly.com/privacy. Please tell us your name, address, and the PII that you would like to update or correct.

If you would like to delete your account or PII, please contact us at www.giftfly.com/privacy with your request. Please note that for legal and business reasons, we may need to retain certain records and information. In addition, some information may remain on back-up systems.

Links to Other Websites

This Privacy Policy only addresses privacy practices for this Site. The Site may contain links to other websites, including third party websites. This Privacy Policy does not govern such other websites and GiftFly is not responsible for the privacy practices of other websites. When you visit another website you should review carefully the privacy policy for that website.

Changes to this Privacy Policy

GiftFly may change this Privacy Policy at any time, for any reason, and without notice, by posting the amended Privacy Policy on the Site. The revised Privacy Policy will become effective on the date of posting. Your continued use of the Site after posting constitutes your agreement to the revised Privacy Policy. GiftFly encourages you to check the Privacy Policy frequently for the latest information on its privacy practices.

How To Contact GiftFly

If you have any questions or concerns about this Privacy Policy, please contact us by e-mail at info@giftfly.com

Effective date: 10/15/12

ACCOUNT HOLDER AGREEMENT

As of 10/15/2012

This document constitutes the agreement (“Agreement”) between you and Four Oaks Bank & Trust Company (“Four Oaks,” “we,” or “us”) outlining the terms and conditions under which the GiftFly Account (“Account” or “Special Purpose Account”) will be opened on your behalf and its relationship to GiftFly LLC (“GiftFly”). By opening this Account, you agree to be bound by the terms and conditions contained in this Agreement.

We may amend this Agreement at any time by posting a revised version on the GiftFly website(s), www.GiftFly.com (“Revised Agreement”). The Revised Agreement will be effective at the time we post it.

• 1. Opening a New Account

  To help the government fight the funding of terrorism and money laundering activity, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. What this means to you: When you open an account we may ask for your address, date of birth, social security number and/or other information that allows us to identify you.

  By opening this Account, you represent and warrant to us that: (1) you are at least 18 years of age (or 19 if you reside in a state where the age of majority is 19 years old) and (2) you are a U.S. citizen or legal alien residing in one of the fifty (50) states, the District of Columbia or Puerto Rico.

• 2. Your GiftFly Account

  A Special Purpose Account will be established for the purpose of holding funds and maintained until: (i) the funds are delivered to the beneficiary you name; (ii) the funds are returned to you; or (iii) your account becomes dormant with a zero balance in accordance with the GiftFly Terms of Service. Your Special Purpose Account is a limited purpose account and will not bear interest. You can make electronic fund transfers to and from your Special Purpose Account only as provided in this Account Agreement. You may not write checks against it or make in-person withdrawals at our offices or other locations. You may at any time direct that your Special Purpose Account be closed and that any funds remaining in your Special Purpose Account, after the deduction of any accrued fees or payments, be returned to you. You may not use your Special Purpose Account for any illegal purpose or in connection with internet gambling transactions.

  You designate GiftFly as your agent for purposes of providing funds transfer and disbursement instructions to us in accordance with this agreement and the GiftFly Terms of Service. We may act upon the instructions provided by GiftFly, without inquiry, as though such instructions came directly from you. You authorize us to provide information about your Account to GiftFly to make payment(s) in the specific amount directed by you or GiftFly.

• 3. Beneficiary Information

  You will be required to name a beneficiary for your Account (the “Recipient”) in order to designate who will receive the funds held in your Account ( the “Funds”). Once the Recipient has performed the required obligations in accordance with the rules applicable to the GiftFly program, we will transfer some or all of your Funds to an account pre-designated by the Recipient.

• 4. Features of the Account

  • Account Activation. Your Account will be activated when you transfer funds into it in accordance with the rules applicable to the GiftFly program.
  • Account Limits. We may, at our discretion, impose limits on the amount of money you can send through your Account. The maximum amount that can be sent from your Account is $___
  • Payment Method. You may open your Account by using PayPal or a Visa, Mastercard, American Express, or Discover card to fund your Account
  • Transfers. You authorize GiftFly to make electronic transfers on your behalf via automated clearing house debit (ACH) from your account for the purpose of transferring funds per your instruction subject to any rules applicable to the GiftFly Terms of Sale. Your agreement to this contract constitutes your authorization to us to make these transfers. Once the authorization for the transfer has occurred, the electronic transfer cannot be cancelled. We are not required to monitor or question the instructions that we receive from you or GiftFly. Other account transfer restrictions may be described elsewhere.
  • Refused and Refunded Transactions. From time to time a Recipient may be unable to accept transferred funds, whether because (1) incorrect account information has been provided for the Recipient, or (2) for some other reason beyond our control. You agree that you will not hold us liable for any damages resulting from a Recipient’s inability to accept funds transferred by us. Any unclaimed, refunded or denied Funds will be returned to your Account and continue to be subject to the rules of the GiftFly program.
  • Accuracy of Information. You are responsible for confirming the accuracy of the information you provide each time you open an Account including the recipient’s name, email address, Facebook user id, or other identifying information and the amount of the transaction.
  • GiftFly Mobile. If GiftFly allows you to access certain GiftFly program-related services through your mobile phone (“GiftFly Mobile”). By your use of GiftFly Mobile, you agree to be responsible for any fees that your phone service provider charges, such as fees for SMS, data services and any other fees that your phone service provider may charge.
  • Dormancy and Inactive Account Closure. At our discretion, your account may be closed if it is deemed inactive. For the purposes of this agreement inactive shall be defined as twelve (12) or more months of zero balance AND no account activity.

• 5.Timely Review of Account Balance

  You are responsible for keeping track of your Account’s available balance. Statements of transactional history in electronic format will be made available to you free of charge at www.giftfly.com. You agree to notify us of any erroneous, improper or unauthorized transactions involving your Account funds no later than 60 days after the first statement on which the problem or error appeared. You must tell us your name and account number (if any), describe the error or transfer you are unsure about, and explain why you believe it is an error or you need more information, and tell us the dollar amount of the suspected error. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account. For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error. We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. We will tell you the results within three business days after completing our investigation. You may ask for copies of the documents that we used in our investigation.

  You agree that in no event will our agents or we be liable for special, incidental, consequential, exemplary or punitive damages unless applicable law provides otherwise.

  Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this agreement or by law with respect to your Account funds or the Transfer Service must be commenced no later than one (1) year after the day the cause of action accrues.

• 6. Amendment, Termination and Assignment

  We may amend this Agreement at any time by posting a revised version on the GiftFly website at www.GiftFly.com (“Revised Agreement”). The Revised Agreement will be effective at the time we post it. We will give you reasonable notice by any method required by law.

  We may close this Account at any time upon reasonable notice to you and tender the Account balance personally or by mail. Items presented for payment after the account is closed may not be honored. When you close your Account, you are responsible for leaving enough money in the Account to cover any outstanding items to be paid from the Account. Reasonable notice depends on the circumstances and, in some cases such as when we cannot verify your identity or we suspect fraud, it might be reasonable for us to give you notice after the change or Account closure becomes effective. For instance, if we suspect fraudulent activity with respect to your Account, we might immediately freeze or close your Account and then give you notice. You agree to keep us informed of your current address at all times. Notice from us to any one of you is notice to all of you. If we have notified you of a change in any term of your account and you continue to have your Account after the effective date of the change, you have agreed to the new term(s).

  You agree that we may at any time assign our rights and obligations under this Agreement to any assignee and in such event this Agreement will remain in full force. This Account may not be transferred or assigned by you without our prior written consent.

• 7. Entire Agreement

  This Agreement sets forth the entire understanding and agreement between you and us, whether written or oral, with respect to its subject matter and supersedes any prior or contemporaneous understandings or agreements with respect to their subject matter.

• 8. Severability

  If any of the terms of this Agreement are invalid, or declared invalid by order of court, change in applicable law, or regulatory authority, the remaining terms of this Agreement shall not be affected and this Agreement shall be interpreted as if the invalid terms had not been included in this Agreement.

• 9. Governing Law and Jurisdiction

  This Agreement will be governed by federal law and, to the extent federal law does not apply, by the laws of the State of North Carolina.

• 10. Conflicting or Unclear Instructions

  If we receive conflicting instructions from you and GiftFly, we will follow your instruction. If we are uncertain regarding the ownership of Special Purpose Account funds, your identity, or the authority of any person to give Special Purpose Account instructions, or if we believe that a Special Purpose Account transaction may be fraudulent or may violate any law, or if the instructions we receive appear, in our sole discretion, to be unclear in any way, we may: (i) freeze your Special Purpose Account and refuse any further transactions until we receive written proof, in form and substance satisfactory to us, of each person’s right and authority over the Special Purpose Account funds, (ii) refuse the transaction in question; (iii) require your signature for the transaction in question; (iv) request instruction from a court of competent jurisdiction; or (v) continue to honor previous instructions received from you (directly or through GiftFly) pending confirmation or clarification. We are not obligated to assert such rights or to notify you or GiftFly in advance of exercising such rights.

• 11. ACH and Wire Transfers

  This agreement is subject to Article 4A of the Uniform Commercial Code - Fund Transfers as adopted in the state in which you have your Account with us. If you originate a fund transfer for which Fedwire is used, and you identify by name and number a beneficiary financial institution, an intermediary financial institution or a beneficiary, we and every receiving or beneficiary financial institution may rely on the identifying number to make payment. We may rely on the number even if it identifies a financial institution, person or account other than the one named.

  You agree to be bound by automated clearing house association rules. These rules provide, among other things, that payments originated by you, are provisional until final settlement is made through a Federal Reserve Bank or payment is otherwise made as provided in Article 4A-403(a) of the Uniform Commercial Code. If we do not receive such payment, we are entitled to a refund from you in the amount credited to your account and the party originating such payment will not be considered to have paid the amount so credited. If we receive a payment order to credit an account you have with us by wire or ACH, we are not required to give you any notice of the payment order or credit.

• 12. Crediting and Payment Holds

  If you have arranged to have direct deposits made to your Special Purpose Account at least once every 60 days from the same person or company, we will credit the amount of the transfer as of the date the funds for the transfer are received. Funds that are deposited to your Special Purpose Account by debit entry from your Primary Account may be subject to a hold of up to six (6) days to ensure good funds. A deposit credit is only temporary and is subject to potential reversal until final payment is confirmed. If we give you provisional credit for an automated clearing house (ACH) transfer, but do not receive final payment, you agree to pay us the full amount by other means without prior notice or demand.

• 13. Unauthorized Transfers

  Tell us at once if your statement shows transfers that you did not make by writing us at www.giftfly.com/info. If you do not tell us within 60 days after the first transfer, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.

• 14. Postdated Checks, Restricted Endorsement Checks and Other Disputed or Qualified Payments

  We can accept postdated deposit checks without losing any of our rights under this agreement. (A postdated check is a check dated later than the day it was actually presented for deposit.) We are under no obligation to hold a postdated check and we reserve the right to process every item presented as if dated the same date received by us or our check processor unless you give us adequate notice and a reasonable opportunity to act on it. Except where such notice and opportunity is given, you may not hold us liable for depositing any postdated check. You agree not to send us checks marked “paid in full,” “without recourse,” or similar language. If you send such a check, we may accept it without losing any of our rights under this agreement. All notices and written communications concerning postdated checks, restricted endorsement checks (including any check or other payment instrument that indicates that the payment constitutes “payment in full” of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount) or any other disputed, nonconforming or check, must be mailed or delivered to: BancBox Customer Disputes, P.O. Box 25539, San Mateo, CA. 94402.

• 15. Our Liability

  If we do not complete a transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance, through no fault of ours, if you do not have enough money in your account to make the transfer or circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.

• 16. Force Majeure

  We shall not be liable for any loss, expense, failure to perform, or delay caused by failure of communication systems, accidents, strikes, fire, flood, war, riot, civil strife, terrorist attack, earthquake, power outage, funds transfer system or government rules, acts of third parties, or any cause that is beyond our reasonable control.

• 17. Call Monitoring and Recording

  You authorize us to listen to and record telephone calls between you and us to evaluate the quality of our services or for any other lawful purpose.

• 18. Communicating With You; Consent to Contact by Electronic and Other Means

  You agree that we may contact you as provided in this paragraph. We may contact you for any lawful reason, including for the collection of amounts owed to us and for the offering of products or services in compliance with our Privacy Policy in effect from time to time. No such contact will be deemed unsolicited. We may contact you at any address or telephone number (including wireless cellular telephone or ported landline telephone number) as you may provide to us from time to time. We may use any means of communication, including, but not limited to, postal mail, electronic mail, telephone or other technology, to reach you. You agree that we may use automatic dialing and announcing devices which may play recorded messages. We may also send text messages to your telephone. You may contact us at any time to ask that we not contact you using any one or more methods or technologies.

• 19. In Case of Errors or Questions About Your Electronic Transfers

  Telephone GiftFly at 1-800-322-6201 or write us at www.giftfly.com/info as soon as you can, if you think your account balance is wrong or if you need more information about a transfer listed on the account. We must hear from you no later than 60 days after the FIRST day on which the problem or error appeared in your account.

  We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.

  For errors involving new accounts, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.

  We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.

• 20. Consent to Electronic Disclosures

  By electronically signing, you agree that we may provide all disclosures, statements, notices, privacy policies, and other communications related to the Account Agreement, the Transfer Service or your Account, including disclosures required by law (collectively, “Electronic Communications”) electronically. We will notify you when a new Electronic Communication has been posted on our website at www.GiftFly.com. When you receive the notification, you agree to promptly visit our website to view the Electronic Communication. You may log in to our website using the login and “Password” information you established at the time of purchase. “Password” means the security code and/or other method of authentication that you are provided to access Special Purpose Account information electronically. You agree not to disclose your Passcode to others and to keep it secure. You also agree that your use of your Passcode constitutes, and you intend it to constitute, your electronic or digital signature on any document or record where your signature is requested or required. By logging in to our website and using your Passcode, you demonstrate that you can access information that we post on our website.

  Upon your request, we will send you a paper copy of any material provided electronically pursuant to this consent. There is no charge for initial paper copies. You have the right to withdraw consent but if you do, we may terminate the Account Agreement. To withdraw your consent to electronic disclosures, update your electronic mail address or request paper copies, email www.giftfly.com/info.

  To access and retain communications, you must meet at least the following requirements: (i) a personal computer or equivalent device capable of connecting to the Internet via dial-up, DSL, Cable Modem, Wireless Access Protocol, or equivalent, and that supports the following requirements; (ii) an Internet Browser that supports HTML 4.0 and SSL-encryption, such as Google Chrome 2.0 or later; and (iii) a means to print or store notices and information through your browser software. All communications in either electronic or paper format from us to you will be considered “in writing.” Please print or download a copy of any Electronic Communication that is important to you for your records.

PARTICIPATING MERCHANT AGREEMENT

As of 10/15/2012

SECTION 1: INTRODUCTORY PROVISIONS

This agreement (“Agreement”) is entered into by GiftFly LLC, its subsidiaries, and affiliates (“GiftFly”) and (“Merchant”). The Agreement is effective as of the date it is fully signed or otherwise executed by both parties (“Effective Date”).

GiftFly offers an electronic gift card service (“GiftFly Service”) through its website located at www.GiftFly.com (“Site”). The GiftFly Service allows users to send and receive electronic gift cards to be used by the recipient at a specific merchant listed on the Site (“Participating Merchant Gift Card”). Merchant wishes to participate in the GiftFly service. Accordingly, GiftFly and Merchant agree as follows:

SECTION 2: DEFINITIONS

For purposes of this Agreement, the terms below shall have the following meanings:

• 2.1 “Confidential Information” means the terms of this Agreement, User Data, and any other information shared with Merchant by GiftFly in connection with the GiftFly Service.

• 2.2 “GiftFly Content” means any content owned or licensed by GiftFly, including such content provided by GifFly to Merchant for use in connection with the GifFly Service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.

• 2.3 “GiftFly User” means any user of the GiftFly Service, including the purchaser or recipient of a GiftFly gift card.

• 2.4 “Merchant Content” means any content owned or licensed by Merchant (other than from GiftFly), including such content provided by Merchant to GiftFly for use in connection with the GifFly 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” means any and all information relating to a GiftFly User including, but not limited to, name, address, email address, telephone number, other contact information, financial information, information relating purchases or preferences, and any other identifying information.

SECTION 3: MERCHANT PARTICIPATION IN THE GIFTFLY SERVICE

• 3.1 Acceptance as a Participating Merchant

  Subject to Merchant’s execution of this Agreement and GiftFly’s acceptance thereof, Merchant shall be permitted to participate in the GiftFly Service during the term of this Agreement. Merchant shall comply with all terms of this Agreement and the GiftFly Service. GiffFly shall have no obligation to issue any Participating Merchant Gift Cards until Merchant has been permitted to participate.

• 3.2 Payment Terms

  Upon the purchase of a Participating Merchant Gift Card, successful delivery to the recipient, and receipt of the funds from the GiftFly User (“Purchase”), GiftFly will advance eighty-five (85) percent of the total value of the Participating Merchant Gift Card into Merchant’s designated PayPal account or bank account within twenty-four (24) hours of the date of Purchase (“Advance”).

  On the ninetieth (90th) day following the date of Purchase, GiftFly will transfer the remaining fifteen (15) percent of the total value of the Participating Merchant Gift Card into Merchant’s designated PayPal or bank account with no fees. Thereafter, GiftFly may assess a service fee of up to $4.99 per month for the non-advanced balance until the balance is zero.

  To protect against illegal activity, GiftFly reserves the right, at its sole discretion, to withhold Advances 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 the redemption of Participating Merchant Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority, if any.  GiftFly 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 GiftFly Service Terms

  GiftFly reserves the right, in its sole discretion, to modify the terms of the GiftFly Service and Merchant’s participation therein. Such modifications shall be binding on Merchant upon written notice from GiftFly in accordance with the notice provisions in Section 9 below. If Merchant notifies GiftFly 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 9 below.

• 3.5 License to Use GiftFly Content

  Once accepted into the GiftFly Service, Merchant shall be permitted access to the GiftFly application used to process Participating Merchant Gift Cards (“Application”). In addition, GiftFly may provide other GiftFly Content to Merchant in connection with the GiftFly Service. GiftFly hereby grants Merchant a limited, nonexclusive, nontransferable, nonsublicensable, revocable license to use the Application and other GiftFly Content solely in connection with the GiftFly Service during the term of this Agreement.

• 3.6 License to Use Merchant Content

  Merchant may provide Merchant Content to GiftFly for use in connection with the GiftFly Service. Merchant hereby grants GiftFly a nonexclusive, worldwide, royalty free license to use such Merchant Content in connection with the GiftFly Service.

• 3.7 Compliance With Applicable Law

  Merchant will comply with the Participating Merchant Gift Card terms and conditions, as set forth in GiftFly’s Terms of Service, available on the Site, and with all state, federal, and other laws applicable to gift cards. Participating Merchant Gift Cards do not expire, do not incur service or maintenance fees to the purchaser or recipient for any reason, are not redeemable for cash unless required by law, and will not be replaced by GiftFly if lost or stolen unless required by law.

  Merchant will allow the recipient of a Participating Merchant Gift Card to redeem the full value of the card. Merchant is responsible for keeping track of the value and any unredeemed balance. Merchant is solely responsible for complying with any applicable escheat or abandoned or unclaimed property laws.

SECTION 4: CONFIDENTIALITY; PRIVACY AND DATA SECURITY

• 4.1 Confidential Information

  Confidential Information provided to Merchant pursuant to this Agreement is provided solely for use in connection with the GiftFly Service. Merchant may not use Confidential Information for any other purpose. Merchant agrees to take reasonable steps to safeguard the confidentiality of all Confidential Information and not to disclose Confidential Information to any other person or entity except as permitted under this Agreement or with GiftFly’s prior written consent.

• 4.2 Privacy and Data Security

  All User Data relating to GiftFly Users provided by GiftFly, or its agents or partners, to Merchant in connection with the GiftFly Service shall be used by Merchant solely for the purpose of participating in the GiftFly Service. Merchant may not use User Data for any other purpose or combine or associate User Data with any other data it retains about a natural person. Merchant agrees that it will not share, transfer, or transmit User Data to any other person or entity except as permitted under this Agreement or with GiftFly’s prior written consent. Merchant is solely responsible for compliance with any laws and regulations applicable to User Data while it is in Merchant’s possession, custody, or control. All User Data is subject to GiftFly’s privacy practices as described in its Privacy Policy, available on the Site.

• 4.3 Material Breach; Injunctive Relief

  Any breach of this section shall be considered a material breach resulting in irreparable harm to GiftFly for which there is no adequate remedy at law. In the event of such a breach, GiftFly shall be entitled to injunctive relief in addition to any other appropriate relief.

SECTION 5: MERCHANT REPRESENTATIONS AND WARRANTIES

Merchant represents and warrants to GiftFly, now and throughout the term of the Agreement, as set forth below. Merchant will notify GiftFly immediately if any of Merchant’s representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement.

• 5.1 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.

   

• 5.2 Taxes

  Merchant is registered for sales and other tax collection purposes in each jurisdiction in which Merchant’s goods or services will be provided.

• 5.3 Merchant Content

  Merchant owns all right, title, and interest 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.

SECTION 6: DISCLAIMERS; LIMITATION OF LIABILITY; FORCE MAJEURE

• 6.1 DISCLAIMERS

  THE GIFTFLY SERVICE, 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.

  GIFTFLY DOES NOT WARRANT THAT THE GIFTFLY SERVICE, SITE, OR RELATED CONTENT AND MATERIALS IS 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, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF THE GIFTFLY SERVICE AND SITE IS AT MERCHANT’S OWN RISK AND MERCHANT IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PROPERTY OR DATA THAT MAY RESULT.

  GIFTFLY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE PURCHASED USING A GIFTFLY GIFT CARD, OR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE GIFTFLY SERVICE OR THROUGH ANY HYPERLINKED WEBSITE. GIFTFLY IS NOT A PARTY TO ANY TRANSACTION BETWEEN A GIFTFLY 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.

• 6.2 LIMITATION OF LIABILITY

  IN NO EVENT SHALL GIFTFLY 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 GIFTFLY SERVICE, OR ANY DAMAGES RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR THE GIFTFLY SERVICE.

  IN ADDITION, GIFTFLY’S TOTAL CUMULATIVE LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY MERCHANT TO GIFTFLY DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

  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 GIFTFLY 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.

• 6.3 Force Majeure

  In addition to, and without limiting, the Limitation of Liability section above, GiftFly 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.

SECTION 7: REMEDIES FOR BREACH; INDEMNIFICATION

• 7.1 Remedies for Breach

  A “Material Breach” includes, but is not limited to, any breach by Merchant of Sections 3, 4, or 5 of this Agreement. In the event of a Material Breach, Merchant shall be obligated to reimburse GiftFly for any damages suffered by GiftFly, including any actual, incidental, and consequential damages.

• 7.2 Indemnification

  Merchant agrees to indemnify and hold harmless GiftFly, and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims by a third party relating to Merchant’s participation in the GiftFly Service 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 Participating Merchant Gift Card or the provision of goods and/or services in connection therewith; (c) any claim by any local, state, or federal government entity for unredeemed Participating Merchant Gift Cards 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 Participating Merchant Gift Card; (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 GiftFly’s use thereof; (f) Merchant’s provision of goods, services, or information in connection with the GiftFly Service; and (g) Merchant’s use or handling of User Data.

SECTION 8: TERM AND TERMINATION; SURVIVAL

• 8.1 Term

  This Agreement shall commence on the Effective Date and continue until terminated as provided herein.

• 8.2 Termination

  GiftFly may terminate Merchant’s participation in the GiftFly Service 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.

  GiftFly may, in its sole discretion, and without liability to Merchant or any third party, terminate the Site or GiftFly Service at any time, for any reason, and without prior notice. This Agreement shall terminate upon termination of the GiftFly Service.

  Merchant may terminate participation in the GiftFly Service at any time by providing GiftFly prior written notice at least ten (10) 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.

• 8.3 Rights and Obligations Upon Termination; Survival

  Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. GiftFly shall not be obligated to issue any Participating Merchant Gift Cards on behalf of Merchant after termination. Merchant shall remain obligated to honor all Participating Merchant Gift Cards issued on behalf of Merchant prior to termination and to pay any amounts owed to GiftFly under this Agreement.

  This section and the following additional sections shall survive termination: 2, 3, 4, 5, 6, 7, 9, 10, and 11.

SECTION 9: NOTICES

• 9.1 Form of Notice; Method of Delivery

  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.

• 9.2 Notices to GiftFly

  Notices to GiftFly must be sent by email to Info@giftfly.com, or by one of the forms of mail delivery service described above to: GiftFly LLC, 419 Lafayette Street, New York, NY 10003, Attn: Legal.

• 9.3 Notices to Merchant

  Notices to Merchant must be sent by email to , or by one of the forms of mail delivery service described above to:

SECTION 10: GOVERNING LAW; VENUE

• 10.1 Governing Law

  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.

• 10.2 Venue

  You agree that any action at law or in equity relating to this Agreement shall be filed only in state or federal courts located in Fairfax 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.

SECTION 11: MISCELLANEOUS

• 11.1 Independent Contractors

  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, partnership, 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.

• 11.2 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.

• 11.3 Assignment

  Merchant may not transfer or assign, by operation of law or otherwise, any rights or obligations under this Agreement without GiftFly’s prior written consent, and any attempted transfer or assignment without such consent shall be void. GiftFly 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.

• 11.4 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.

• 11.5 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 effect the original intent of the parties as closely as possible so that the transactions contemplated under the Agreement are fulfilled.

• 11.6 Entire Agreement

  Subject to Sections 3.7 and 4.2, this Agreement sets forth the entire agreement between the parties relating to Merchant’s participation in the GiftFly Service and supersedes any prior or contemporaneous understandings or agreements.

• 11.7 Amendments

  Except as expressly permitted herein, amendments to this Agreement must be in writing and signed by both parties.

• 11.8 Interpretation of Terms

  Both 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.

• 11.9 Counterparts

  This Agreement may be executed in counterparts with separate signature pages, which together shall constitute a single document.

• 11.10 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.

• 11.11 Electronic Communications

  Merchant agrees that business with GiftFly 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 checking the box and providing the electronic identification below, you agree to the terms and conditions in this Agreement.

SIGNATURE:

I [signatory’s name] am a representative of [Merchant’s name] located at [Merchant’s address] and authorized to sign this Agreement on its behalf. I have read and agree to the terms contained in this Agreement. [Add “I Agree” Box]