Last updated: October 4th, 2019
Accepting the Terms
By using the Service, you agree to accept and to be bound by this Agreement, and to comply with it in its entirety, whether you are a store owner within Shopify that chooses to download and install the GIFTHY Shopify App “Merchant” or you are a “User” (which means that you have chosen to use the GIFTHY Shopify App to gift some product to any other third party).
The term “you” refers to a Merchant or a User. The term “we” or “our” refers to GIFTHY.
You must be at least 16 years old to access and use the Service. If you are below the age of 16 years old, you may use and access the Service only under the supervision of your parent or guardian who has agreed to be bound by these Terms.
If you accept this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity. If you do not agree to this Agreement, you must not use the Service (please kindly don’t use the Service :).
Personal Data Protection – Privacy
Please note that any time an individual provides Personal Information or other information about someone other than himself or herself, the individual warrants that they have that person’s consent to provide such information for the purpose specified. If you do not have such person’s consent to provide such information you must not use the Service.
If you are a Merchant, please also see Section titled: “Data Processing” below.
Description of the Service
The GIFTHY.io Shopify App is a software that allows a user (the “Gift Sender”) to buy a gift for another person (the “Gift Recipient”) from any Shopify Store in which a Merchant has enabled the Service. These terms apply to you as a Gift Sender or as a Gift Recipient.
Gift Senders may not use the Service to purchase any Gift with an aggregate value of greater than €1,000 (including the shipment costs) on any single day. We reserve the right to change this limitation at any time and without notice. We reserve the right to suspend operation of the Service for any reason and without prior notice, provided that such suspension will not interfere in settlement of Payments already accepted from you by any Merchant.
The Gift Sender will be required to enter personal contact information, such as email address, and GIFTHY is not responsible for any incorrect contact information provided by the Gift Sender. The Gift Sender may be required to enter contact information about the Gift Recipient. Gift Sender states that they have consent of the Gift Recipient to provide GIFHTY with all Gift Recipient information provided. Purchasing the Gift Offered does not guarantee the price or availability of any Product, and the Product ultimately ordered from any Merchant will be ordered only when the Gift is redeemed by the Gift Recipient. The price of the Gift Offered is based on the price of the Product selected by the Gift Sender at the time it is purchased, in addition to shipping and taxes estimate when applicable.
After the Gift Sender purchases the Gift Offered, the Service will notify the Gift Sender, or Gift Recipient when applicable, thereof using the contact information provided by the Gift Sender.
All Products are priced at the time of Gift redemption according Merchant’s prices then in-effect and are subject to availability. Sales taxes and shipping costs are defined by the Merchants.
The Gift Offered may be cancelled for the following reasons: (i) by the Gift Sender at any point before the Gift is redeemed or exchanged by the Gift Recipient; or (ii) by GIFTHY as permitted and/or required by law, this Agreement, Merchant’s Terms or in order to prevent fraud or money laundering or other illegal uses of the Service or uses that pose excessive legal, financial or security risk to GIFTHY or its suppliers;.
Upon cancellation of the Gift Offered, the Service will notify the Gift Sender and the Gift Recipient of the cancellation and it will be the sole Merchant’s responsibility to refund the Gift Sender’s original Payment method for the appropriate amount as the case may be.
Grant of License over the GIFTHY Shopify App
(a) Whether you are a User or a Merchant, GIFTHY hereby grants you a non-exclusive, not subject to sublicense, non-transferable, revocable right and license to use the Service for your own use (the “License”), subject at all times to the License restrictions set forth in this Agreement.
(b) GIFTHY’s grant to you of this License is not a sale and under no circumstances can be construed as a sale to you or to any third party of GIFTHY Shopify App or any portions thereof. All rights not expressly granted to you by GIFTHY hereunder are hereby expressly reserved.
License Restrictions and Other Limitations
(a) You agree that you will not yourself, or through any parent, subsidiary, affiliate, agent or other third party sell, lease, license, sublicense, encumber or otherwise deal with any portion of the GIFTHY Shopify App, including any and all applicable software and Documentation.
(b) You agree that you shall not (i) disassemble, decompile, reverse engineer or otherwise attempt to discover any source code or underlying proprietary information relating to the GIFTHY Shopify App, or (ii) use any portion of the GIFTHY Shopify App, GIFTHY’s Intellectual Property Rights or other intellectual property including know-how of GIFTHY to create similar or derivative works or for any other use or purpose not expressly permitted by this Agreement. GIFTHY’s “know-how” means Documentation, designs, technical information, instruction and training manuals and specification concerning the technology for the GIFTHY Shopify App.
(c) You and were the case may be your employees are prohibited from (i) modifying or altering the GIFTHY Shopify App in any way, (ii) damaging, misusing, improperly operating, or abusing the GIFTHY Shopify App, and introducing any computer virus or malicious or unauthorized programming code(s) into the GIFTHY Shopify App.
(d) You shall not use the GIFTHY Shopify App on Stores or in relation to Products or Services containing:
• (i) content that is an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material, or discriminates on the basis of sex, age, race, religion, nationality, disability, sexual orientation, family status, or other such classification, as determined at the sole discretion of GIFTHY;
• (ii) content that promotes any illegal activity, including without limitation, the promotion of gambling, illegal substances, software piracy, or hacking;
• (iii) content that infringes the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other Intellectual Property Right of any third party;
• (iv) content that violates any law, rule or regulation of any applicable jurisdiction;
• (v) content that promotes or references software piracy and/or activities generally understood as Internet abuse including but not limited to the sending of unsolicited bulk email or the use of spyware, malware or distribution of worms and/or viruses; or
• (vi) content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with any applicable consumer protection laws and regulations;
• (vii) other types of content that are specifically highlighted in the content policy that GIFTHY will update from time to time.
Immediately after the Effective Date GIFTHY shall enable your access to the GIFTHY Shopify App administration dashboard and the Service in accordance with this Agreement. You shall be responsible for maintaining confidentiality as well as sole control over your access credentials as well as over such dashboard and dashboard features. You hereby irrevocably accept responsibility for all activities that occur in relation to your account.
Fees and Payments by Merchant
(a) Merchant shall pay GIFTHY a Monthly or Annual (at Merchant’s choosing) Fee, for the ability to use the the GIFTHY.io Shopify App in accordance with GIFTHY’s pricing scheme as published in GIFTHY’s website and as updated from time to time.
(b) Invoices shall be issued once a month and on same the day that Merchant originally signed up for the GIFTHY Service. All Fees shall be paid in advance via Shopify Billing according to Shopify Terms of Service.
(c) All payments under this Agreement will be made in the currency defined at the time when Merchant originally signed up for the Service.
(d) If any fees or payments due to GIFTHY pursuant to this Agreement are not paid by Merchant by the due date thereof, after three attempts to receive payment GIFTHY will freeze Merchant’s account. No usage of the Platform will be available to Merchant while the Merchant’s account is frozen. If after 60 days Merchant fails to honor said payments, Merchant’s account will be permanently deleted and all associated data and Personal Data will also be permanently removed and deleted from the Platform.
(e) In the event Merchant disputes the calculation of any fees or payments owed to GIFTHY pursuant to this Agreement, it must provide written notice of such dispute within fourteen (14) days of the date a disputed amount was otherwise due and owing to GIFTHY. Upon timely submission of a notice of dispute pursuant to this Section (e), the Parties will work in good faith to resolve this dispute for a period of thirty (30) days and if, at the end of such 30 day period, no resolution has been reached, the Parties shall submit to binding arbitration,. Any arbitration to be held pursuant to this clause will follow the provisions set forth in the “Arbitration” Section below.
(a) You hereby acknowledge that GIFTHY owns all rights, titles and interests in and pertaining to the GIFTHY Shopify App, the Service, the Documentation and all Intellectual Property Rights associated therewith, including the layout (look and feel), design, texts and organization of the GIFTHY Shopify App and any reports or data generated by it and you shall not acquire any right, title or interest in the GIFTHY Shopify App, Service, Documentation and all Intellectual Property Rights associated therewith, including without limitation the layout (look and feel), design, texts and organization of the Platform and any reports or data generated by the Platform. All rights not expressly granted in this Agreement are expressly reserved.
(b) If you are a Merchant, you grant to GIFTHY a non-exclusive, worldwide, perpetual, royalty-free license to transmit over the Internet, use, display, copy, translate, and create derivative works in respect of any Intellectual Property Rights embodied in your Shopify Store and any products and any product information provided by you (or your clients) to GIFTHY pursuant to this Agreement and/or utilized by GIFTHY on behalf of you (or your clients) by way of usage of the GIFTHY Shopify App pursuant to this Agreement.
(c) You grant to GIFTHY a non-transferrable, non-exclusive, not subject to sublicense, royalty-free, right and license to use and display any trade names, trademarks, service marks, and logos associated to you (collectively “Merchant Marks”) in fulfillment of its obligations under this Agreement and, upon prior written approval (email sufficient), in other promotional materials for GIFTHY’s business and services for the purposes of promoting the existence of the relationship between the Parties. GIFTHY may issue a press release relating to this Agreement and the relationship of the Parties.
(a) Except as set forth in Subsection (d) below, as between the parties, each party will own all data it provides to the other in connection with this Agreement, and the receiving party will use all such data only as reasonably required for the performance of its obligations and exercise of its rights under this Agreement, and will not disclose such information except to third parties to which the disclosing party has a reporting obligation, and then only to the extent required to fulfill the same to a commercially reasonable extent.
(b) Subject to the terms of this Section (b), GIFTHY will have the perpetual and irrevocable right to collect, use and store any and all data obtained as a result of the operation of the GIFTHY.io Shopify App (collectively, “Performance Data”); provided, however, that Performance Data expressly excludes data that identifies a specific Data Subject, which information shall be treated under Section 8(d). GIFTHY shall own all such Performance Data, and shall have the right to use and disclose Performance Data (i) as needed to perform its obligations hereunder, (ii) in order to fulfill its obligations to the relevant third party entities to which it has reporting obligations, as applicable, and/or (iii) only anonymously and in the aggregate with comparable data from other sources for reporting, planning, promotional and development purposes, so long as third parties cannot attribute the data to the other party.
(c) Personal Data: This section reflects the parties’ agreement with respect to the terms governing the processing of Personal Data under this Terms of Service. In all cases GIFTHY (“Processor”), acts as the processor of Personal Data and Merchant (“Controller”) remains controller of any Personal Data processed under this Agreement.
GIFTHY shall only Process Personal Data on behalf of and in accordance with Merchant’s instructions mainly through the usage by Merchant of the GIFTHY Shopify App and shall treat Personal Data as Confidential Information. Any time an individual provides Personal Information or other information about someone other than himself or herself, the individual warrants that they have that person’s consent to provide such information for the purpose specified.
Merchant instructs GIFTHY to Process Personal Data for the following purposes: (i) Processing in accordance with this Agreement in order to provide Merchant with the ability to use the GIFTHY Shopify App; (ii) Processing to comply with other reasonable instructions provided by Merchant (e.g., via a support ticket or e-mail request) where such instructions are consistent with any applicable Law and the terms of the Agreement; and/or (iii) Disclosing such Personal Data to such third parties, as chosen or selected by Merchant through its usage and operation of the GIFTHY Shopify App.
Personal Data that may be collected through the usage of the Service:
• We may collect personal details such as an individual’s name, image, location, date of birth, nationality, family details and other information such as a video message recorded by the individual that allows us to identify who the individual is as well as to provide the Service.
• Contact Information. We may collect information such as an individual’s email address, telephone & fax number, third-party usernames, residential, business and postal address and other information that allows us to contact the individual.
• Statistical Information. We may collect information about an individual’s online preferences, purchases and other information for statistical purposes; and Information an individual sends us.
• Technical information regarding their computer, network and browser. This may include their IP address.
TRANSFER OF PERSONAL DATA OUTSIDE THE EUROPEAN UNION: We may transfer Personal Data to a third country in order to perform the Service. Merchant acknowledges that the GIFTHY.io Shopify App operates in a distributed computing platform environment involving third party infrastructure outside the European Union and the European Economic Area and thus, using the GIFTHY.io Shopify App necessarily involves the transfer of Personal Data to such foreign locations and technical infrastructure. Merchant hereby authorizes such transfers of Personal Data.
DESCRIPTION OF THE TRANSFER; Data subjects: The personal data transferred in the standard operation of the GIFTHY.io Shopify App concerns Data Subjects (individuals) that receive store coupons that are generated using the GIFTHY.io Shopify App; Purposes of the transfer: The transfer is made in order to enable the GIFTHY.io Shopify App to generate, send and track such store coupons; Categories of data:
• Personal Information. Personal details such as an individual’s name, image, location, date of birth, nationality, family details and other information such as a video message recorded by the individual that allows us to identify who the individual is as well as to provide the Service.
• Contact Information. Information such as an individual’s email address, telephone & fax number, third- party usernames, residential, business and postal address and other information that allows us to contact the individual.
• Statistical Information. Information about an individual’s online preferences, purchases and other information for statistical purposes; and Information an individual sends us.
• Information regarding their computer, network and browser. This may include their IP address.
Recipients: The personal data transferred may be disclosed only to the following recipients:
• Gift-related information: Merchants’ Shopify account.
• Video messaging recording and storage: Danzig Media (CameraTag)
GIFTHY shall, within its scope of responsibility, implement and maintain throughout the duration of Data Processing appropriate technical and organizational measures to adequately protect the data against unauthorized and or unlawful processing and accidental destruction or loss in accordance with and satisfying the requirements of Art. 32 EU General Data Protection Regulation, and the current state of technology. GIFTHY agrees and warrants that it will reasonably cooperate with Merchant by appropriate technical and organizational measures whenever possible, so that Merchant will be able to meet its obligations to notify any Supervisory Authorities of any security breaches as required by applicable Data Protection law. Furthermore, GIFTHY upon Merchant’s request, agrees to assist Merchant in the fulfillment of its obligation to respond to a Data Subject’s request to exercise their rights in accordance with applicable Data Protection laws. GIFTHY shall assist Merchant in ensuring compliance with the obligations regarding, if applicable, data protection impact assessment and prior consultation with the supervisory authority taking into account the nature of processing and the information available to GIFTHY.
Merchant shall, in its use and operation of the GIFTHY.io Shopify App, process Personal Data in accordance with any and all requirements of applicable Data Protection laws and will ensure at all times that its instructions to GIFTHY for the Processing of Personal Data shall comply with any applicable Data Protection laws. Personal Data obtained through the GIFTHY.io Shopify App may only be used by the Merchant in compliance with this Agreement and any applicable Data Protection laws. GIFTHY is not liable for any improper use of Personal Data vis-à-vis third parties. Merchant shall bear sole responsibility for the accuracy, quality, and legality of any further processing and/or storing of Personal Data acquired and/or accessed through the GIFTHY.io Shopify App.
Merchant warrants and undertakes that: (a) Any Personal Data uploaded to the GIFTHY.io Shopify App Platform has been collected, processed and transferred in accordance with any applicable Data Protection laws. (b) It has used reasonable efforts to determine that the Merchant is able to satisfy its legal obligations under these clauses. Merchant will employ at all times adequate technical and organizational measures in order to ensure the secure storage within its systems of any Personal Data acquired through the GIFTHY.io Shopify App Platform; Merchant agrees that such storage will at all times be conducted in a manner that will allow Merchant to fully comply with its obligations to respond to a Data Subject’s request to exercise their rights in accordance with applicable Data Protection law. Merchant shall indemnify and hold GIFTHY 100% harmless on a euro-per-euro basis against any claims, damages, fines, losses and/or any liabilities arising from any event related or in connection with any usage of the GIFTHY.io Shopify App by Merchant in breach of any applicable personal data protection law or regulation/s.
In the event of termination of this Agreement for any reason or cause whatsoever, GIFTHY agrees and warrants that it will, at the choice of Merchant and subject to GIFTHY requirements under applicable Data Protection law: i.) permanently delete or destroy the Personal Data and the documents and information mediums containing the Personal Data as well as any manual or computerized files storing the Personal Data; or; ii.) return, at Merchant’s written request, within thirty (30) days, the Personal Data to Merchant, in a format commonly used and agreed with Merchant, without GIFTHY retaining a copy. The Parties agree that all Personal Data will be destroyed after 30 days of any cancellation. After such time it will be impossible to issue a copy of said Data.
Representations and Warranties
You represent and warrant to GIFTHY as follows:
(a) You have full right and authority to enter into this Agreement and perform all of its obligations hereunder, and you shall retain that right and authority throughout the term of this Agreement.
(b) You shall operate in accordance with all applicable laws and regulations and the Service shall not be used or associated with any materials and/or linked Websites or Stores that are obscene, defamatory, fraudulent or illegal.
(c) You are the originator and/or owner of all content used in conjunction to the GIFTHY Shopify App or else, you have full authority from the owner of the content for such purpose.
(d) Your usage of the GIFTHY Shopify App will not breach any contract or infringe or violate any Intellectual Property Right, any applicable laws, rules or regulations, or any personal or proprietary right of any person including any privacy and/or personal data protection rights.
(e) Any information contained within any Store and/or Linked Website in which the GIFTHY Shopify App is installed and used is accurate and shall not be misleading and shall not contain any viruses, bugs, worms, Trojan horses or any other computer programming routines that are intended to damage, interfere or intercept any computer system or extract any data or personal information.
Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES PROVIDED BY GIFTHY PURSUANT TO THIS AGREEMENT ARE BEING PROVIDED TO COMPANY AND, AS APPLICABLE, ITS CLIENTS, “AS IS, WITH ALL FAULTS.” ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED BY GIFTHY TO THE FULLEST EXTENT PERMITTED BY SPANISH AND INTERNATIONAL LAWS. GIFTHY DOES NOT GUARANTEE THAT THE PLATFORM OR OTHER SERVICES OFFERED PURSUANT TO THIS AGREEMENT WILL OPERATE CONTINUOUSLY OR UNINTERRUPTED. IF AN INTERRUPTION IN THE PLATFORM OR OTHER SERVICES OFFERED HEREBY OCCURS, GIFTHY’S SOLE OBLIGATION SHALL BE TO RESTORE THE PLATFORM AND OR SERVICES OFFERED HEREBY FOR WHICH IT IS RESPONSIBLE AS SOON AS IS REASONABLY POSSIBLE. GIFTHY EXPRESSLY DISCLAIMS THE ACCURACY OR VALIDITY OF ANY USAGE STATISTICS OR LEVELS OF IMPRESSIONS FOR ANY PROPOSALS AND ANY ESTIMATED USAGE STATISTICS PROVIDED BY GIFTHY TO COMPANY THROUGH THE PLATFORM ARE PROVIDED AS A COURTESY ONLY AND GIFTHY SHALL NOT BE HELD LIABLE FOR ANY CLAIMS RELATED TO SUCH USAGE STATISTICS, HOWEVER SUPPLIED. GIFTHY DOES NOT WARRANT THE RESULTS OF USE OF THE GIFTHY SERVICES OR GIFTHY PLATFORM.
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS, COMPANY’S BREACH OF THE LICENSES GRANTED TO COMPANY, (A) NEITHER PARTY IS LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF COMPANY’S BREACH OF THE LICENSES GRANTED TO COMPANY, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL NET REVENUE EARNED BY GIFTHY UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NEITHER PARTY WILL BE DEEMED IN DEFAULT OF THIS AGREEMENT TO THE EXTENT THAT PERFORMANCE OF ITS OBLIGATIONS (OTHER THAN PAYMENT OBLIGATIONS) OR ATTEMPTS TO CURE ANY BREACH ARE DELAYED OR PREVENTED BY REASON OF ANY FORCE MAJEURE, FIRE, NATURAL DISASTER, ACCIDENT, RIOTS, ACTS OF GOVERNMENT, ACTS OF WAR OR TERRORISM, SHORTAGE OF MATERIALS OR SUPPLIES, FAILURE OF COMMUNICATIONS OR OF SUPPLIERS OF GOODS OR SERVES, OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF SUCH PARTY.
(a) GIFTHY agrees to indemnify, defend and hold harmless Merchant, its officers, directors, employees, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable attorney’s fees and costs) (collectively, hereinafter, “Losses”) arising out of or relating to (i) any breach or alleged breach by GIFTHY of its representations, warranties, or covenants provided in this Agreement; (ii) GIFTHY’s bad faith, gross negligence or willful misconduct.
(b) You agree to indemnify, defend and hold harmless GIFTHY, its officers, directors, employees, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any Losses incurred in connection therewith arising out of or relating to (i) any breach or alleged breach by Merchant of its representations, warranties, or covenants provided in this Agreement; (ii) any aspect related and/or derived from the Proposals and/or Linked Websites; (iii) Merchant’s use of the Platform or any portion of the services provided in this Agreement in breach of this Agreement; (iv) the Merchant Marks; or (v) Merchant’s bad faith, gross negligence or willful misconduct.
Failure from Merchant to comply with any payment obligation and/or payment schedule to GIFTHY derived from this Agreement will automatically result in waiver by Merchant from any right to indemnification from GIFTHY in favour of Merchant, regardless of its origin or cause.
(c) An indemnitee under this section (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnitor full control and sole authority over the defense and settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.
Term and Termination
This Agreement will continue to apply until terminated by either you or GIFTHY as set out below. If you want to terminate your legal agreement with GIFTHY, you may do so by closing your account for the Service.
All notices or any other kind of formal communication in connection with this Agreement must be in Spanish or English, must be in writing and must be made through any means that provide absolute certainty about the date the communication was made, its contents and whether it was received by the other Party.
Any notice or formal communication made by e-mail will be deemed to have been validly made and validly received, if directly responded by the receiving party.
(a) The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter.
(b) A waiver of a Party’s breach of any provision of this Agreement will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of this Agreement.
(c) The relationship of GIFTHY and Merchant established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.
(d) If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
(e) GIFTHY shall have the sole right to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any affiliated, or associated company or to a purchaser of all or substantially all of its assets. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
(f) GIFTHY may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on Gifthy’s website. In addition, the Agreement will always indicate the date it was last revised. You are deemed to accept and agree to be bound by any changes to the Agreement when you use the Service after those changes are posted.
(g) This Agreement shall be governed by, and construed in accordance with, the laws of Spain. With express waiver of any forum to which any of the Parties may be entitled, the Parties agree that all disputes arising out of or in connection with this Agreement shall be finally settled by arbitration in Law (“Arbitraje de Derecho”), under the Rules of Arbitration of Madrid’s Chamber of Commerce Court of Arbitration (“Corte de Arbitraje de la Cámara de Comercio de Madrid”), by one (1) sole arbitrator appointed in accordance with such Rules. The seat of the arbitration will be the city of Madrid, in Spain. The language of arbitration shall be English. Arbitrator must be admitted to practice law in Spain. Any award issued as a result of such arbitration shall be final and binding between the Parties, and shall be enforceable by any court having jurisdiction over the Party against whom enforcement is sought. The fees and expenses of such arbitration (including the cost of administration of arbitration, fees and expenses of arbitrators or any experts assisting the arbitrators, and reasonable fees and expenses of attorneys, interpreters and other experts assisting the Parties) or any action to enforce an arbitration award shall be paid by the Party that does not prevail in such arbitration.