THE TOU SHALL TAKE EFFECT ON THE DATE YOU FIRST LOGIN TO THE PLATFORM (THE “EFFECTIVE DATE”). BY YOUR INITIAL LOGIN AND YOUR SUBSEQUENT ACCESS OF THE EGIFTER PLATFORM AND USE OF ITS SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT, AND AGREE TO BE LEGALLY BOUND BY, THESE TOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ACCESS THE EGIFTER PLATFORM AND USE ITS SERVICES. EGIFTER RESERVES THE RIGHT TO CHANGE THE TERMS, CONDITIONS, AND NOTICES UNDER WHICH IT OFFERS THE EGIFTER PLATFORM OR ANY SERVICES AT ANY TIME, FOR ANY REASON, AND WITHOUT NOTICE, AND SUCH MODIFICATIONS SHALL BE DEEMED EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED TOU. YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF REVISED TOU MEANS THAT YOU ACCEPT AND AGREE TO THE CHANGES. YOU ARE EXPECTED TO REVIEW THESE TOU EACH TIME YOU ACCESS THE EGIFTER PLATFORM SO THAT YOU ARE AWARE OF ANY CHANGES, AS THEY ARE BINDING ON YOU. IF, AT ANY TIME, YOU DO NOT WISH TO ACCEPT THE TOU, YOU SHOULD IMMEDIATELY DISCONTINUE ANY ACCESS OF THE EGIFTER PLATFORM. ANY TERMS AND CONDITIONS PROPOSED BY YOU WHICH ARE IN ADDITION TO OR WHICH CONFLICT WITH THESE TERMS ARE EXPRESSLY REJECTED BY EGIFTER AND SHALL BE OF NO FORCE OR EFFECT.
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Applicable Law" means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, including, without limitation, those relating to gift cards, advertising, privacy and data security.
"Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these TOU; and (b) for whom access to the eGifter Platform and use of the Services has been purchased.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User. "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions, or other documents or materials that eGifter provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or eGifter Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"eGifter Materials" means the eGifter Platform, Services and Documentation, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, as well as the eGifter logo and other names, logos, icons and marks identifying eGifter and its products and services, in each case that are provided or used by eGifter in connection with the Services or otherwise comprise or relate to the eGifter Platform or Services. For the avoidance of doubt, eGifter Materials include Resultant Data and any information, data, or other content derived from eGifter's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"eGifter Systems" means the information technology infrastructure used by or on behalf of eGifter in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by eGifter or through the use of third-party services.
"Intellectual Property" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other Intellectual Property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Process" means to take any action or perform any operation or set of operations that the eGifter Platform is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available. "Processing" and "Processed" have correlative meanings.
"Resultant Data" means data and information related to Customer's use of the Services that is used by eGifter in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. "Third Party Materials" means materials and information, in any form or medium, including any hyperlinks, websites, software, services, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to eGifter.
2.1. General Services. The eGifter Platform provides Services to Authorized Users the ability to purchase digital or physical gift cards (“Gift Cards”) from eGifter.
2.2. Limited License. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this TOU and the relevant Documentation defining the specific Service to be provided by eGifter, eGifter hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right for its Authorized Users to access the eGifter Platform and use the Services during the Term. Nothing in these TOU grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, eGifter Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, eGifter Materials, and the Third-Party Materials are and will remain with eGifter and the respective rights holders in the Third-Party Materials.
2.3. Account Registration. In order to take advantage of certain features of the Services, Customer will be required to create an account(s) (an “Account”). Customer represents and warrants that all registration information provided by or on behalf of Customer in connection with accessing and/or using the Services is true, accurate, current and complete at the time of registration and Customer undertakes to update all such registration information if at any time during use of the eGifter Platform or Services such information becomes untrue or inaccurate. When you create an Account, Customer agrees to take full responsibility for maintaining the confidentiality of Customer’s Account information, and for all activity that is generated by Customer’s Account. Accordingly, Customer understands and agrees to be liable for any activity performed by anyone using your Account. Customer agrees to promptly notify eGifter in writing of any unauthorized use of Customer’s Account or any other breach of security.
2.4. Service and System Control. Except as otherwise expressly provided in these TOU, as between the parties: (a) eGifter has and will retain sole control over the operation, provision, maintenance, and management of eGifter Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of eGifter Materials by any person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or eGifter; (ii) results obtained from any use of the Services or eGifter Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5. Compliance. Each Party shall comply with these TOU and all Applicable Laws.
2.6. Service Level. eGifter’s goal is to provide a service with outstanding uptime and reliability. Planned downtime, Intellectual Property claims and matters outside of our reasonable control are some of the circumstances that may lead to the eGifter Platform or some of the Services being unavailable. Although eGifter strives to operate without interruption, it cannot guarantee that the eGifter Platform or any Service will always be available, but shall use commercially reasonable efforts to make the eGifter Platform and its Services available.
2.7. Right to Modify. eGifter is constantly working to improve the quality of the Services and modifies the Services from time to time, including adding or deleting features and functions, in an effort to improve the user’s experience. Nothing in these TOU shall prohibit eGifter from making such changes to the Services. eGifter reserves the right to provide some or all elements of the Services through use of Third Party Materials.
2.8. Gift Cards. The following applies only if the Service provided to Customer includes access to the B2B Gift Card section of the eGifter Platform through which Gift Cards issued by their respective retailer or merchant (“Issuer”) may be purchased on the eGifter Platform. All Gift Cards are subject to availability and may require Issuer approval. It is understood that each Issuer reserves the right to impose quantity limits on an order, reject all or any part of an order or discontinue specific Issuer Gift Cards. eGifter is not responsible if a Gift Card or Code is lost, stolen, destroyed, or used without permission after successful electronic transmission of a gift card code. Use of any Issuer brand names, logos or images by Customer requires eGifter’s written approval to ensure compliance with Issuer requirements. eGifter will assist with obtaining any applicable Issuer requirements and for communicating such requirements to Customer promptly upon purchase of the Gift Cards. eGifter may require that certain mandatory terms and conditions be included on materials promoting or accompanying the Gift Cards if so required by an Issuer. Issuers shall be solely responsible for redemption of Gift Cards and eGifter shall have no obligation or liability with respect to such redemption. All customer service relating to a Gift Card is the sole responsibility of its Issuer; provided, however, eGifter may attempt to assist Customer in troubleshooting and resolving difficulties with the redemption of a Gift Card purchased through the Services.
2.9 Payment Terms. The Gift Cards from the Issuer that are purchased are sold and distributed by eGifter. By placing an order for a Gift Card(s), you agree to purchase the Gift Card(s). Once you've completed your payment, you will receive a confirmation of the payment and your selected payment method will be charged for the amount of the Gift Card(s) value and fees charged (if any) for using the Platform Service to facilitate the purchase of the Gift Card(s). Once the payment(s) is confirmed, the Gift Card(s) will be sent to you or the Recipient using the eGifter Platform Service. Additional measures may be necessary to ensure the authenticity of your transaction and your payment information.
Unless otherwise stated at the time a Gift Card is purchased, the Gift Card price does not include sales taxes, which may be charged to you separately by the Merchant at the time the Gift Card is redeemed.
3. PROPRIETARY RIGHTS
3.1. eGifter Materials. All right, title, and interest in and to the eGifter Materials, including all Intellectual Property therein, are and will remain with eGifter and, with respect to Third Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property, in and to the Third Party Materials. Customer has no right, license, or authorization with respect to any of the eGifter Materials except as expressly set forth in Section 2.2 or the applicable third-party license, in each case subject to Section 3.4. All other rights in and to the eGifter Materials are expressly reserved by eGifter. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to eGifter an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property relating thereto. Neither Customer nor any of its representatives will delete or in any manner alter the copyright, trademark, and other proprietary notices of eGifter, appearing on any eGifter application or documentation.
3.2. Campaign Materials License. Subject to the terms and conditions of these TOU, including each Party’s confidentiality obligations, Customer hereby grants eGifter a limited, non-exclusive, royalty-free, worldwide license to use all electronic data (including Customer Data), video, artwork, screen names, graphics (including logos), photos, profiles, audio (including music), links, software or written content or any other files, or any other information supplied by Customer to eGifter (“Campaign Materials”) and to perform all acts with respect to the Campaign Materials as may be reasonable or necessary for eGifter to provide the Services to Customer. eGifter is not responsible for any Campaign Materials which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by eGifter, including, but not limited to, the Internet, third- party sites, and Customer’s local network. eGifter may in its sole discretion immediately cancel any campaign that it reasonably believes is harmful to its users or in any way violates rules or regulations of any of the social or other networks or sites. Except for the limited rights expressly granted to eGifter under these TOU with respect to the Campaign Materials, eGifter does not acquire any right or title to or any interest in any Campaign Materials.
3.3. Enhancements and Recommendations. Customer hereby grants to eGifter a royalty-free, fully paid-up transferable, sub-licensable, irrevocable, perpetual worldwide license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services.
3.4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these TOU. Customer shall not at any time, directly or indirectly (a) copy, modify, or create derivative works of the Services or any other eGifter IP, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or any other eGifter IP except as expressly permitted under these TOU; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or any other eGifter IP, in whole or in part; (d) remove any proprietary notices from the Services or any other eGifter IP; or (e) use the Services or any other eGifter IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person, or that violates any Applicable Law.
3.5. Customer Data. As between Customer and eGifter, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Materials, including the Customer Data, and all Intellectual Property Rights relating thereto.
3.6. Third-Party IP and Materials. Any third-party trademarks, service marks, names, logos, icons, copyrights and other Intellectual Property (collectively, “Third-Party IP”) associated with the Services are the property of such third party and may not be used by Customer without the prior written consent of such third party or is made available by such third party for public use. All rights to Third-Party IP are reserved to such third party. Customer agrees not to post, distribute, reproduce, or sell in any way, any Third-Party IP without legal authorization. eGifter does not provide any warranty as to the use of any Third Party Materials, including those portions of the eGifter Platform containing features and functionality that may link to or be provided by a third party, including without limitation any payment service providers. eGifter provides access to these Third Party Materials to you as a convenience only and we do not, in any way, control or manage such offerings. As such, we are not responsible for the content, functionality, accuracy, truthfulness, or availability of such Third Party Materials, and will not be responsible for the content, security, terms or privacy policies of those providing such Third Party Materials. By making such Third Party Materials available via the eGifter Platform, we are not endorsing or warranting such Third Party Materials in any way.
4. CONFIDENTIALITY; DATA PROTECTION
4.1. Confidential Information. Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party including but not limited to customer data, pricing, trade secrets and know-how (collectively, "Confidential Information"). Both Parties recognize that there is a need for each Party (the “Disclosing Party”) to disclose to the other Party (the “Receiving Party”) certain Confidential Information of the Disclosing Party. The Receiving Party will maintain the strict confidentiality of the Confidential Information of the Disclosing Party and will not disclose such Confidential Information to any third party (except to such third parties who have a need to know such Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder and who are required to protect such Confidential Information in a manner no less stringent than required under these TOU) and shall exercise at least the same degree of care in safeguarding such Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information of the other Party for any purpose except those contemplated by the Parties herein relating to these TOU. The following shall not be deemed Confidential Information: (a) information that is or becomes publicly available through no wrongful act of the Receiving Party; (b) information that is already known by the Receiving Party as evidenced by documentation bearing a date prior to the date of disclosure; (c) information that is approved for release in writing by an authorized representative of the Disclosing Party; (d) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; and (e) independently developed by the Receiving Party as evidenced by documentation. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party to the limited extent required to comply with the order of a court or other governmental body or as otherwise necessary to comply with Applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given reasonable advance written notice to the other Party.
4.2. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information by the Receiving Party may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without posting a bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, Customer irrevocably waives any right to enjoin or restrain the operation of the Services as a whole, or eGifter's use of any content or other material used or displayed through the Services other than Customer’s Confidential Information.
4.3. Data Protection. eGifter acknowledges that it may have access to certain of Customer Systems to provide the Services. If, during eGifter’s performance of the Services hereunder, Customer makes any Customer Data available to or accessible by eGifter then eGifter will only Process such Customer Data to the extent necessary to perform the Services or as otherwise permitted under these TOU. eGifter will comply with all Applicable Laws relating to personally identifiable information and data privacy, including implementing and maintaining a variety of physical, administrative, and technical controls, screening, and security procedures and other safeguards designed to protect Customer Information from unauthorized use and disclosure. In the event of a breach or threatened breach of Customer data, eGifter will notify Customer as soon as reasonably practicable.
4.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and eGifter Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer shall implement and maintain all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
5. WARRANTIES; DISCLAIMER
5.1. Mutual Warranties. Each Party represents and warrants that it has the power and authority to enter into these TOU. eGifter warrants that the eGifter Platform and its Services, and Customer represents and warrants that the Campaign Materials, will be free of any unauthorized programs or devices developed to disable or to erase, damage or corrupt software, hardware or data detectable by means of commercially-available virus-detection software.
5.2. eGifter Warranties. eGifter represents and warrants to Customer that the (a) eGifter Platform shall perform in accordance with its Documentation, in all material respects, and (b) Services provided to Customer will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards. eGifter represents and warrants that it has, and continuing annually thereafter it shall maintain, compliance with the PCI Compliance Standards and any applicable rules of a network when applicable to Services provided.
5.3. Customer Warranties. Customer represents and warrants to eGifter that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Campaign Materials and Customer Data so that, as received by eGifter and Processed in accordance with these TOU, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, any privacy or other rights of any third party, or Applicable Law.
5.4. Disclaimer. THE WARRANTIES EXPRESSLY SET FORTH IN SECTIONS 4.1 AND 4.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY EGIFTER AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAWS, EGIFTER MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EGIFTER DOES NOT WARRANT THAT THE EGIFTER SERVICES WILL MEET CUSTOMER’S SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, OR ARE ERROR FREE, THAT CUSTOMER’S CONSUMERS OR OTHER USERS OF THE SERVICE WILL BE ABLE TO ACCESS OR USE THE EGIFTER SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE SERVICES ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION OR OTHER HARMFUL MECHANISMS. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER, PROVIDER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
6.1. Indemnification by eGifter. eGifter will indemnify, defend and hold harmless Customer for any damages, costs and expenses (including reasonable attorneys' fees) incurred by Customer arising out of or relating to any third-party claim, suit or proceeding alleging that Customer’s use of the Services in accordance with the terms and conditions of these TOU infringe a third party's United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of the following: (a) Customer’s use of Campaign Materials; (b) Customer’s use of the Services in combination with any software, hardware, network or system not supplied by eGifter where the alleged infringement relates to such combination; (c) any modification or alteration of the Services by or on behalf of Customer; (d) Customer continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, (e) Customer Data or Third Party Materials; or (f) Customer’s violation of any Applicable Law or the rights of third parties. If any claim has occurred, or in eGifter's determination is likely to occur, eGifter may, in its sole discretion and at its option and expense (w) obtain for Customer the right to use the allegedly infringing item, (x) substitute a functionality equivalent, non-infringing replacement for such item, (y) modify such item to make it non-infringing and functionally equivalent, or (z) terminate the use of the Services.
6.2. Indemnification by Customer. Customer will indemnify, defend and hold harmless eGifter for any damages, costs and expenses (including reasonable attorneys' fees) incurred by eGifter arising out of or relating to any third-party claim, suit or proceeding that are alleged to arise out of or relate to (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (b) any materials or information, including Campaign Materials, provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these TOU; or (d) breach of these TOU, including use of the Services in a manner not authorized hereunder.
6.3. Notice. The Parties' indemnification obligations under this Section 6 are contingent upon the Party seeking indemnification (a) giving prompt written notice to the indemnifying Party of any claim under this section, (b) giving the indemnifying Party sole control of the defense or settlement of such claim, and (c) cooperating in the investigation and defense of such claim. The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party. Subject to the limitations and exclusions set forth in Section 7, the rights and remedies set forth in this Section 6 are the sole obligations of the indemnifying Party and exclusive remedies available to the indemnified Party in the event of an applicable third-party claim.
6.4. Sole Remedy. THIS SECTION 6 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7. LIMITATION OF LIABILITY
7.1. LIMITATION OF LIABILITY. EXCEPT FOR THE CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS OF EACH OF THE PARTIES, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TOU, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES HEREUNDER FOR THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
7.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EGIFTER (INCLUDING, WITHOUT LIMITATION, ITS AFFILIATES, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, COVER, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY EVEN IF EGIFTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION.
8.1. Term. The term of these TOU (the “Term”) will commence on the Effective Date and will continue unless terminated as provided under Section 8.2.
8.2. Termination for Cause. These TOU may be terminated at any time as follows: (a) by a Party that has not breached or defaulted in the performance of its obligations under these TOU upon written notice to the Party that has breached or defaulted in the performance of its obligations under these TOU, provided such breach or default is not cured or substantially cured within fifteen (15) days of such notice; (b) by either Party if the other Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against the other Party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party; (c) by eGifter for any reason upon [sixty (60)] days’ advance written notice to Customer; or (d) by a written agreement executed by both of the Parties.
8.3. Effect of Termination. Upon termination, Customer shall cease all use of the Services, and the limited license to access and use the Services granted by eGifter hereunder shall terminate immediately. Upon Customer request made within thirty (30) days after the date of such termination, eGifter shall make available to Customer for download any Campaign Materials in the current format in which it is stored in the eGifter application(s). After such thirty (30)-day period, eGifter shall have no obligation to maintain or provide any Campaign Materials and may thereafter, unless legally prohibited, delete all Campaign Materials in its systems or otherwise in its possession or under its control.
8.4. Suspension of Services. Notwithstanding the right to terminate these TOU, eGifter may immediately suspend or otherwise deny Customer's, any Authorized User's, or any other third party access to or use of all or any part of the Services or eGifter Materials, without incurring any resulting obligation or liability, if: (a) eGifter receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires eGifter to do so; or (b) eGifter believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of these TOU, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these TOU; or (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities. This Section 8.4 does not limit any of eGifter's other rights or remedies, whether at law, in equity, or under these TOU.
Except to the extent expressly provided to the contrary herein, Sections 3, 5, 6, 7, 8.3, 9 and 10 shall survive Termination.
10.1. Relationship. The relationship between the Parties is non-exclusive and at all times during these Term shall remain that of independent contractors in relation to each other, and that neither Party is authorized to make any representations or any commitment on the other’s behalf unless previously authorized in writing. Each party’s obligations to the other hereunder are exclusively contractual in nature. These Terms shall not be deemed to create any partnership, joint venture, agency, fiduciary or employment relationship or any other legal relationship between the Parties.
10.2. Force Majeure. eGifter shall not be liable under these TOU for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, communicable disease outbreaks (including epidemics and pandemics), governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.
10.3. Modification and Discontinuation. eGifter reserves the right to modify or discontinue, either temporarily or permanently, the Services (or any part, terms or conditions thereof) necessary to comply with any Applicable Law by providing reasonable prior written notice to Customer. Customer agrees that eGifter shall not be liable to Customer or to any third party for any necessary modification, suspension or discontinuance of the Services due to the change in Applicable Laws, provided that eGifter has taken or attempted to take, commercially reasonable actions to comply with such Applicable Laws in a manner that would enable the continued business between the Parties as set forth in these TOU.
10.5. Governing Applicable Law and Venue. These TOU shall be governed by and construed under the laws of the State of New York. The Parties agree that the state and federal courts located in Suffolk County, New York, will have exclusive jurisdiction to adjudicate any dispute relating to these TOU. Each Party hereby irrevocably consents to the exclusive jurisdiction of such courts. The Parties agree that U.S. privacy laws, and not the privacy laws of any other jurisdiction, apply.
10.6. Notices. Except for email notifications as permitted hereunder, all other legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (a) the date sent by confirmed facsimile or email, (b) on the date it was delivered by courier, or (c) if by certified mail return receipt requested, on the date received. All communications and notices to be made or given pursuant to these TOU shall be in the English language.
10.7. Severability. All clauses and covenants contained in these TOU are severable and in the event any of them are held to be invalid by any court, such clause or covenant shall be valid and enforced to the maximum extent as to which it may be valid and enforceable, and these TOU will be interpreted as if such invalid clauses or covenants were not contained herein.
10.8. Assignment. These TOU are personal to Customer and may not be assigned or transferred for any reason whatsoever without eGifter’s prior written consent, and any action or conduct in violation of the foregoing will be void and without effect. eGifter expressly reserves the right to assign these TOU and to delegate any of its obligations hereunder.