Gimmeo :: It's Better to Gimmeo Than to Receive :: Gimmeo - Real-world gift giving for virtual worlds

TERMS OF USE AND SERVICE

Date of Last Revision: January 31, 2009

The gimmeo Service (defined below) is operated by gimmeo, llc and its subsidiaries and affiliates (“us,” “we” or “gimmeo”). By using or accessing the gimmeo Service, you agree that you have read, understand and are bound by these Terms of Use and Service (“Terms”). We reserve the right, at our sole discretion, to change or delete portions of these Terms at any time without further notice. Your continued use of the gimmeo Service after any such changes constitutes your acceptance of the new Terms.

PRIVACY
gimmeo’s primary concern is the privacy of our users and we encourage you to read our Privacy Policy.

ELIGIBILITY
You may not use the gimmeo Service if you are under 18 or the age required by the social media site through which you access gimmeo. If you are required to register as a sex offender in any jurisdiction, you may not use the gimmeo Service.

REGISTRATION; ACCOUNT SECURITY
When you register for and use the gimmeo Service, you will be asked to provide information about yourself (“Personal Information”). Your Personal Information must be accurate and current at all times. You are solely responsible for maintaining the security of your account. This means, for example, that you may not share your password or let anyone else access your account. If you have reason to believe that your account is no longer secure, please let us know immediately.

PROHIBITED CONDUCT
By using or accessing the gimmeo Service, you represent, warrant and agree that you will not:

    - do anything that could disable, overburden or impair the proper working of the gimmeo Service;
    - use any robot, spider, scraper or other automated means to access the gimmeo Service;
    - send spam or any other unauthorized advertisements or solicitations pretending to be from the gimmeo, its partners or affiliates;
    - solicit private or personal information (including names, addresses, social security numbers, credit card numbers and passwords) from users of the gimmeo Service;
    - provide any false personal information in your gift profile, create more than one gift profile per social media site, create a gift profile for anyone other than yourself or create a gift profile without authorization;
    - use your profile for any commercial purpose;
    - intimidate or harass any user;
    - do anything that is illegal, infringing, fraudulent, malicious or could expose gimmeo, gimmeo’s partners and affiliates or the gimmeo Service users to harm or liability including but not limited to sending or receiving items that are deemed illegal or controlled in your jurisdiction; or
    - attempt, encourage or facilitate any of the above.

gimmeo does not pre-screen, review, or approve any users. gimmeo may, in its sole discretion, remove or disable access to any user gift profile.

MOBILE
There are features of the gimmeo Service that may be accessible via certain mobile carriers (the “Mobile Services”). While we currently do not charge for these Mobile Services, your carrier’s normal messaging, data and other rates and fees will still apply. By using the Mobile Services, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device, and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information on the gimmeo Service to ensure that your messages are not sent to the person that acquires your old number.

PAYMENT FOR GOODS AND SERVICES
You must be authorized to use the credit card, debit card or other third-party or proxy payment source (“Card”) you provide to purchase gifts. By purchasing gifts, you authorize gimmeo or its designated payment processor to charge the purchase amount (plus any applicable tax) to your Card. By providing your Card account information to gimmeo, you authorize us to collect and store it and other related transaction information.

GIFTS
When you purchase gifts, you are subject to the terms and policies of gimmeo and the merchant providing the gift item purchased. Some purchases may be non-refundable. gimmeo does not guarantee or warranty any items purchased from its merchant partners.

TRADEMARKS
Except for Merchant and Social Media Partner Content, all materials, content and trademarks on the gimmeo Service are the property of gimmeo and/or its licensors and are protected by all relevant IP laws and other proprietary rights (including copyright, servicemark, trademark, trade dress and patent laws) and any other applicable laws. Without limiting the foregoing, gimmeo, e-commerce privacy proxy, e-commerce privacy proxy for social media, the gimmeo logo and all related logos, are trademarks or servicemarks of gimmeo. Except as expressly authorized by gimmeo in writing, you agree not to use, sell, license, distribute, copy, publish, stream, publicly perform or display, transmit, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works or otherwise make unauthorized use of the materials, content or trademarks.

SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information that you provide to gimmeo (“Submissions”), are non-confidential and non-proprietary. gimmeo will be entitled to the unrestricted use of any such Submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
USER DISPUTES; COMPLAINTS
You agree not to hold gimmeo responsible or liable for the actions of third parties (including your interactions with users) on or relating to the gimmeo Service. This includes transactions conducted on the gimmeo Service as well as the collection, handling and sharing of personal information that you provide to third parties. If you have a dispute with a third party relating to the gimmeo Service, you release gimmeo and its directors, officers, employees and agents (collectively, the “gimmeo Entities”) from any claims, causes of action and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

If you believe that the gimmeo Service or gimmeo business practices are in any way unfair, fraudulent or unlawful, you agree to bring it to the attention of gimmeo’s legal department. If you do not report the issue or continue using the service after discovering the issue, you expressly waive the right to claim that the gimmeo Service is unfair, fraudulent or unlawful with respect to that issue.

INDEMNITY
You agree to indemnify and hold gimmeo Entities harmless from and against any claim or cause of action brought by a third party as well as any related damages, costs and expenses (including reasonable attorneys’ fees) (“Claim”) arising out of or related to your (a) use of the gimmeo Service or any of the applications, features, content or materials related thereto; (b) violation of these Terms; (c) violation of the rights of any other person or entity; or (d) breach of the representations, warranties and covenants made by you herein. gimmeo reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify gimmeo, and you agree to cooperate with gimmeo’s defense of these Claims.

GENERAL DISCLAIMERS
USE OF THE GIMMEO SERVICE IS AT YOUR OWN RISK. THE GIMMEO SERVICE, GIMMEO WEBSITES AND PARTNER WEBSITES, FEATURES, CONTENT AND MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE GIMMEO SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GIMMEO, ITS SUPPLIERS, LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, GIMMEO, ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE GIMMEO SERVICE WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE GIMMEO SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

GIMMEO IS NOT RESPONSIBLE OR LIABLE FOR, AND DOES NOT APPROVE OR ENDORSE ANY THIRD PARTY CONTENT, MATERIALS, WEBSITES OR APPLICATIONS MADE AVAILABLE ON, THROUGH OR IN ASSOCIATION WITH THE GIMMEO SERVICE (COLLECTIVELY, “THIRD PARTY MATERIALS”). WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, AVAILABILITY, OFFENSIVENESS, OPINIONS, RELIABILITY, PRIVACY PRACTICES OR OTHER POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS, AND WE CANNOT AND DO NOT GUARANTEE THAT THIRD PARTY MATERIALS WILL COMPLY WITH THE RESTRICTIONS, CONDITIONS OR OBLIGATIONS THAT WE REQUIRE. IF YOU DECIDE TO USE OR ACCESS THIRD PARTY MATERIALS, YOU DO SO AT YOUR OWN RISK AND YOU MAY BE REQUIRED TO AGREE TO TERMS OF SERVICE, PRIVACY AND DATA GATHERING PRACTICES AND OTHER POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS. PLEASE REVIEW ALL SUCH TERMS AND POLICIES CAREFULLY.

CERTAIN 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, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

LIMITATION ON LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL GIMMEO ENTITIES OR THEIR LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR EXEMPLARY DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE GIMMEO SERVICE, THE GIMMEO WEBSITES OR ANY PARTNER WEBSITES, FEATURES, CONTENT OR THIRD PARTY MATERIALS MADE AVAILABLE ON, IN CONJUNCTION WITH OR THROUGH THE GIMMEO SERVICE, EVEN IF GIMMEO OR A GIMMEO AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, GIMMEO’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY TO YOU OF GIMMEO ENTITIES OR OF THEIR LICENSORS OR SUPPLIERS FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE GIMMEO SERVICE, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS OF THE GIMMEO SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO GIMMEO DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR $100, WHICHEVER IS GREATER.

TERMINATION AND CHANGES TO THE GIMMEO SERVICE
We may terminate your account on the gimmeo Service, delete your gift profile and any User Content you have on or through the gimmeo Service, and/or prohibit you from using or accessing the gimmeo Service (or any portion thereof) for any or no reason, at any time in our sole discretion, with or without notice. Further, we reserve the right to change any aspect or feature of the gimmeo Service at any time without notice. The following sections will survive any termination of your use of the gimmeo Service: Prohibited Conduct, User Content, Your Privacy Practices, Ownership; Proprietary Rights, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the gimmeo Service, Arbitration, Governing Law; Venue and Jurisdiction and Other.

ARBITRATION
Except as set forth in the paragraph below, you agree that all claims and disputes between you and gimmeo that arise out of or relate in any way to the Terms or your use of the gimmeo Service will be resolved either by (a) binding arbitration by a single arbitrator in San Diego County, California or (b) binding non-appearance based arbitration conducted by telephone, online or based solely on written submission. Such arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) (see www.jamsadr.com) pursuant to its Comprehensive Arbitration Rules. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction.

With respect to any claims or disputes you intend to bring on behalf of a class, you agree to arbitrate whether a class could be certified before bringing such action in a court of law. If the arbitrator refuses to certify the class, you will continue to resolve your individual claims or disputes through binding arbitration. If the arbitrator finds that a class should be certified, you may file the class action in a court of law provided you waive any right to a trial by jury. Claims for injunctive or other equitable relief may also be brought in a court of law.
Governing Law; Venue and Jurisdiction

You agree that all claims and disputes between you and gimmeo that arise out of or relate in any way to the Terms or your use of the gimmeo Service will be governed by the laws of the State of California (and United States federal laws applicable therein), without regard to principles of conflict of laws. You further agree that you will bring any claims or disputes that are not subject to arbitration (as set forth above) in, and you submit to the exclusive jurisdiction of, the state and federal courts located in San Diego County, California.
Other

The “gimmeo Service” means the features, services and properties that gimmeo makes available through (a) www.gimmeo.com or any other gimmeo-branded or co-branded website (including, without limitation, any and all sub-domains and all international, mobile versions and successors thereof), (b) the websites of gimmeo’s social media and merchant partners (including, without limitation, any and all sub-domains and all international, mobile versions and successors thereof), (c) the gimmeo Platform and (d) other media, devices or networks now existing or later developed. Unless otherwise specified, the terms “includes,” “including,” “e.g.,” “for example,” and other similar terms used herein are deemed to include the term “without limitation” immediately thereafter. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision in that or any other instance. If, for any reason, any provision of these Terms or portion thereof is rendered invalid or unenforceable, the remainder of these Terms will remain in full force and effect and will be enforced to the maximum extent permissible so as to effect the intent of the parties. An arbitrator or court will substitute or rewrite any invalid or unenforceable term or provision to make such term or provision valid and enforceable. All communications and notices to be made or given pursuant to these Terms will be in the English language. You consent to receiving communications and notices from gimmeo at the e-mail address you provide in registering for the gimmeo Service or otherwise elect in your account settings. These Terms constitute the entire agreement and supersede any prior agreement between you and us regarding your use of the gimmeo Service.