RNCOMMERCE (GIFTPIXEL) TERMS OF SERVICE

Last Revision: April 15, 2015

 

These Terms of Service (these "Terms") are between you and RNCommerce, Inc. and apply to your use

of and access to RNCommerce, Inc.’s online products and services branded as GiftPixel, described in

these Terms (collectively, the "Service"). RNCommerce shall hereinafter be referred to as “GiftPixel.” If

you are using the Service on behalf of an entity, you represent and warrant that you are authorized to

accept these Terms on behalf of the entity, and that the entity agrees to be responsible to GiftPixel if you

violate these Terms. These Terms do not change the terms of any other agreement you may have with

GiftPixel.

 

PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONSTITUTE AN ENFORCEABLE

AGREEMENT BETWEEN YOU AND GIFTPIXEL. BY USING OR ACCESSING THE SERVICE, YOU

AGREE TO BE BOUND BY THESE TERMS AS WELL AS ALL APPLICABLE LAWS. IF YOU DO NOT

AGREE TO ALL OF THE TERMS, CONDITIONS AND RESTRICTIONS SET FORTH HEREIN,

GIFTPIXEL DOES NOT GRANT YOU THE RIGHT TO USE THE SERVICE.

 

For purposes of these Terms, "GiftPixel," “we,” “us,” or "our" refers to RNCommerce, Inc. and

RNCommerce, Inc.'s directors, investors, officers, employees, agents, representatives, and assigns, and

"you" or "your" refers to any person who uses or accesses the Service.

 

1. ELIGIBILITY

You must be at least 13 years old to access and use the Service. If you are at least 13 but younger than

18 years old, you may access and use the Service only under the supervision of your parent or guardian

who has agreed to be bound by these Terms. To access certain features within the Service, you may be

required to provide certain information to GiftPixel. All information that you provide must be accurate,

complete and current. You accept all risks of unauthorized access and use relating to your use of the

Service and will notify GiftPixel immediately if you discover or suspect any unauthorized access or use.

 

2. PRIVACY

Please see GiftPixel's privacy policy at http://www.giftpixel.com/privacy for information regarding how

GiftPixel collects, uses, and discloses information about users of the Service.

 

3. THE SERVICE

(a) Generally

The Service provides a platform that allows a person (the "Gift Sender") to send a custom text/e-card or

video message (the “Gift Message”) to accompany a gift (the “Gift”) purchased from a participating online

merchant (the “Merchant”) for a person designated by the Gift Sender (the “Gift Recipient”). The Gift

Recipient receives a notification of the Gift Message via email and/or on the packing slip which

accompanies the Gift, as may be applicable. The Gift Recipient uses the information provided in the

notification to view the Gift Message on a web page that may be hosted by either GiftPixel or the

Merchant. These Terms govern your use of the Service as the Gift Sender, the Gift Recipient, or both.

 

(b) Sending the Gift Message

Merchants are able to customize the Services, and as such, you may not have access to all of the

aspects and functionality of the Services that are mentioned herein. The Gift Sender will create the Gift

Message while purchasing the Gift for Gift Recipient or, in some cases, after the purchase has been

made. The Gift Sender may create the Gift Message by typing a text message into an e-card template,

uploading a pre-recorded video message, or by recording a video message using the video functionality

on the Gift Sender’s PC, tablet or mobile device. The Gift Sender will provide the Gift Recipient’s name

and email address, and designate when the Gift Recipient should receive the Gift Message notification

(the “Message Notification”), or, in some instances, this information may be provided to GiftPixel by the

Merchant. The Message Notification may be delivered on a specific date, or upon delivery of the Gift to

the Gift Recipient. GiftPixel is not responsible for any incorrect or outdated contact information provided

by the Gift Sender. In some instances, Gift Sender may be able to cancel or modify the Gift Message

prior to the delivery of the Message Notification. Gift Messages will be accessible to the Gift Recipient for

a minimum of 90 days from the date that the Gift Message is created. GiftPixel reserves the right to

delete and terminate access to Gift Messages without notice to Gift Sender or Gift Recipient after 90

days. In the event that Gift Sender or Gift Recipient wishes to have the Gift Message deleted and access

to it terminated for any reason, Gift Sender or Gift Recipient, as may be applicable, must submit a

deletion request to GiftPixel in writing to staff@giftpixel.com . Such deletion request must include the date

that the Message Notification was delivered, the Gift Sender’s name and email address, the Gift

Recipient’s name and email address, and the name of the Merchant. GiftPixel will, within a reasonable

amount of time, terminate access to the subject Gift Message. Gift Messages can be accessed and

viewed by anyone with the access information found in the Message Notification, so Gift Recipient and

Gift Sender should protect the Message Notification and its content accordingly. GiftPixel is not

responsible for any third-party access to or viewing of Gift Messages. Gifts are subject to any terms and

conditions set forth by the Merchant; it is your sole responsibility to review the applicable terms and

policies that govern purchases from the Merchant. GiftPixel is not responsible for any content that

Merchant may include on the Gift Message hosting web page.

 

(c) The Merchant's Responsibilities

The Merchant, not GiftPixel, is solely responsible for the following: (i) products and services provided by

the Merchant, including price, advertising, accurate product names, descriptions, and pictures, fulfilling

and shipping all orders, etc.; (ii) any marketing, cross-sell, upsell, marketing opt-in efforts that Merchant

may include on the Gift Message viewing page (iii) all payment issues, including refunds and

chargebacks; (iv) complying with applicable federal, state, and local laws and regulations with respect to

its own activities; and (v) returns, exchanges, defects, and any other issues regarding products or

services provided by the Merchant. Any questions or issues regarding payment card charges, order or

shipment errors, returns, exchanges, defects or problems with the products or services provided by the

Merchant, or any other issues that are the sole responsibility of the Merchant should be directed to the

Merchant.

 

4. USE OF THE SERVICE

(a) Ownership

GiftPixel reserves all rights not expressly granted in these Terms. Except for the license expressly stated

in these Terms, you are not granted any rights in or to the Service by implication, estoppel, or other legal

theory, and all rights in and to the Service not expressly granted in these Terms are hereby reserved and

retained by GiftPixel. All information, materials, and content including text, graphics, data, formatting,

graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs,

typefaces, source and object code, format, queries, algorithms, and other content (collectively "GiftPixel

Material") is owned by GiftPixel or is used with permission. This GiftPixel Material is protected in all forms,

media, and technologies now known or later developed.

 

(b) License by GiftPixel

Subject to these Terms, GiftPixel grants you a non-exclusive, non-transferable, revocable license to use

the Service (including any GiftPixel Materials therein) solely for the purpose for which the Service is

provided. This license will govern any upgrades provided by GiftPixel that replace or supplement the

original Service, unless such upgrade is accompanied by a separate license, in which case the terms of

that license will govern.

 

(c) Gift Message Content and License by Gift Sender

“Content” includes the text, graphics, photos, sounds, music, videos, audiovisual combinations, and other

materials Gift Sender may include in a Gift Message. Gift Sender shall be solely responsible for the

Content of any Gift Messages and the consequences of submitting a Gift Message on the Service. Gift

Sender represents and warrants that Gift Sender owns or has the necessary licenses, rights, consents

and permissions to publish the submitted Content, and Gift Sender licenses to GiftPixel all rights

necessary to transmit, publish and display the Content for the sole purpose of delivering the Service

pursuant to these Terms of Service. For clarity, Gift Sender retains all ownership rights to the Content of

Gift Messages created and/or submitted by Gift Sender, and hereby grants GiftPixel a worldwide,

exclusive, royalty-free, sublicenseable license to use, reproduce, distribute, display and perform the

Content solely for the purpose of delivering the Services, and specifically, allowing Gift Recipient and any

other individual with the required Gift Message access information to view the Gift Message. GiftPixel

may retain, but not display, distribute, or perform copies of Gift Messages that have been deleted.

 

(d) Restrictions

You are solely responsible for your conduct (and the conduct of anyone who uses the Service on your

behalf or with your permission in connection with Gift Messages you have sent or received) with respect

to the Service, which you use at your own risk. Except as expressly permitted in writing by us, you will not

do, and will not permit any third party to do, any of the following in connection with the Service:

(i) use the Service for commercial purposes;

(ii) copy, adapt, hack, of reproduce the Service;

(iii) distribute the Service;

(iv) introduce viruses, corrupted data or other harmful, disruptive, or destructive files to the Services.

(v) modify, port, translate, or create derivative works of the Service;

(vi) remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in

the Service;

(vii) rent, lease, lend, sell, or sublicense the Service;

(viii) attempt to reverse engineer, disassemble, derive the source code, underlying ideas, or algorithms of

the Service or any part of the Service, except to the extent required by applicable law;

(ix) knowingly take any action that would cause the Service or any part the Service to be placed in the

public domain;

(x) use the Service in any manner that could disrupt, interfere with or inhibit GiftPixel's other users from

fully enjoying the Service or that could damage, overburden, or impair the functioning of the Service;

(xi) harass, threaten, intimidate or cause discomfort to other users of the Service (including using the

Service to harass Gift Recipients by, e.g., sending unwanted or objectionable Gift Messages);

(xii) use the Services to send pornographic, obscene or illegal content, or content which is illegal or

promotes or encourages criminal or illegal activity;

(xiii) use the Services to disseminate private information of any third parties, including addresses, phone

numbers, and payment card information

(xiv) harvest or collect information about other users of the Service without their consent;

(xv) impersonate or use the Service on behalf or any person or entity or otherwise misrepresent your

affiliation with a person or entity;

(xvi) use the Service for purposes other than personal Gift Message giving or receiving;

(xvii) infringe on any third party's rights, including, copyright, patent, trademark, trade secret or other

proprietary rights or rights of publicity or privacy, including but not limited to knowingly sending Gift

Messages which violate the intellectual property or privacy rights of a third party;

If you violate any of the foregoing restrictions, your right to use the Service will stop immediately and

automatically, and, to the extent that you may have infringed the intellectual property and other rights of

GiftPixel, you may be subject to prosecution and damages. GiftPixel reserves the right to permanently

delete and terminate access to any Gift Messages which, in GiftPixel’s sole discretion, violate any of the

aforementioned restrictions.

 

5. THIRD-PARTY ADVERTISING / LINKS

GiftPixel, upon request by Merchant, may run advertisements and promotions from or through the

Service, including on the Gift Message hosting webpage, or may provide information about or links to

third-party products or services, including those of the Merchant’s and Merchant’s affiliates. Your

business dealings with, or participation in promotions of, any such third parties (including Merchant and/or

its affiliates), and any terms, conditions, warranties, or representations associated with such dealings,

correspondence, or promotions, are solely between you and the applicable third party. GiftPixel is not

responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. We do

not control any third-party websites, content, services which may be linked to the Service. Your use of

such third-party websites and services is subject to the privacy practices and terms of use established by

the third party operating such website or service, and we disclaim all liability for such use. Further,

descriptions of, or references to, third-party products, services or publications within the Service do not

imply endorsement of, and we are not responsible for any such product, service or publication.

 

6. TRADEMARKS

GiftPixel's name, trademarks, logos, and any other GiftPixel product, service name, or slogan included in

the Service are trademarks of GiftPixel and may not be copied, imitated, or used (in whole or in part)

without GiftPixel's prior written permission. The look and feel of the Service, including all custom graphics

and e-card templates, are the service marks, trademarks, or trade dress of GiftPixel and may not be

copied, imitated, or used (in whole or in part) without our prior written permission. All other trademarks,

registered trademarks, product names, and company names or logos mentioned in the Service ("Third

Party Trademarks") are the property of their respective owners, and the use of such Third Party

Trademarks inures to the benefit of each owner. The use of such Third Party Trademarks does not

constitute an affiliation by GiftPixel and its licensors with such company or an endorsement or approval by

such company of GiftPixel or our licensors or our respective products or services.

 

7. COPYRIGHT POLICY

(a) Repeat Infringer Policy.

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, GiftPixel has

adopted a policy of terminating, in appropriate circumstances and at GiftPixel's discretion, users who are

deemed to be repeat infringers. We also may, at GiftPixel's discretion, limit access to the Service and

terminate access of any users who infringe any intellectual property rights of others, whether or not there

is any repeat infringement.

 

(b) Copyright Complaints.

If you believe that anything on the Service infringes upon any copyright that you own or control, you may

file a notification as set forth below:

RNCommerce, Inc.

Attn: Legal

4727 Sterling Drive

Fremont, CA 94536

legal@giftpixel.com

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly

misrepresent in your notification that the material or activity is infringing, you may be liable for any

damages, including costs and attorneys' fees, incurred by GiftPixel or the alleged infringer as the result of

GiftPixel relying upon such misrepresentation in removing or disabling access to the material or activity

claimed to be infringing.

 

8. FEEDBACK

You hereby grant to GiftPixel a worldwide, perpetual, irrevocable, royalty-free license to use and

incorporate into the Service any suggestion, enhancement request, recommendation, correction or other

feedback you provide regarding GiftPixel or the Service. Any such feedback shall constitute confidential

information owned by us, which we are free to use, disclose, reproduce, license, distribute in our sole

discretion without obligation or restriction of any kind.

 

9. CHANGES TO THESE TERMS OR THE SERVICE

GiftPixel reserves the right to change any of the terms, conditions, and restrictions set forth in these

Terms, or any policy or guideline of the Service, at any time at GiftPixel's discretion by posting the

changes via the Service. Changes will become effective thirty (30) days from the posting of the changes

via the Service ("Notice Period"). If you disagree with any changes, you must stop using the Service

within the Notice Period. Your use of the Service after the Notice Period constitutes your acceptance of

the changes. You should review these Terms whenever you access the Service to ensure that you

understand the terms, conditions, and restrictions that will apply to your use of the Service.

GiftPixel reserves the right to review, improve, change, or discontinue (temporarily or permanently) the

Service or any features, information, materials, or content on the Service without notice to you. GiftPixel

will not be liable to you or any third party for any changes or discontinuance of the Service or any part

thereof.

 

10. SUSPENSION OR TERMINATION

In its sole discretion, GiftPixel may suspend or terminate your license to access or use the Service for any

reason without notice. You will stop accessing or using the Service immediately if GiftPixel suspends or

terminates your license to access or use the Service. GiftPixel reserves the right, but does not undertake

any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress

against you for continuing to use the Service during suspension or after termination. GiftPixel may

recover its reasonable attorneys' fees and court costs from you for such actions. These Terms will remain

enforceable against you while your license to access or use the Service is suspended and after it is

terminated. Except for the license to you to access and use the Service, all of the terms, conditions, and

restrictions set forth in these Terms will survive termination of these Terms.

 

11. DISCLAIMERS

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS"

AND "AS AVAILABLE" BASIS. GIFTPIXEL DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS

(EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE SERVICE,

GIFT MESSAGES, THE MERCHANTS, THE GIFTPIXEL MATERIAL, AND THIRD PARTY

TRADEMARKS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM

OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY

WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS OR SUITABILITY FOR ANY

PURPOSE (WHETHER OR NOT GIFTPIXEL KNOWS, HAS REASON TO KNOW, OR HAS BEEN

ADVISED OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION

OF TITLE. GIFTPIXEL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE

WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE

WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICE WILL BE

CORRECTED.

 

12. INDEMNIFICATION

You will defend, indemnify, and hold harmless GiftPixel from and against any actual or threatened suits,

actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments,

settlements, liabilities, losses, costs, and expenses (including reasonable attorneys' fees, costs, penalties,

interest, and disbursements) arising from or related to your conduct with respect to the Service, the

content of your Gift Message(s), as may be applicable, or your violation (or alleged violation) of these

Terms or the rights of any third party or of applicable law.

 

13. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL GIFTPIXEL OR MERCHANT BE

LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT,

CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR

RELATED TO THESE TERMS, THE SERVICE, GIFT MESSAGES, GIFT MESSAGE CONTENT, OR

THIRD PARTY TRADEMARKS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY

(CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT

LIABILITY OR OTHER THEORY), EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE

POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR

LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT

APPLY TO YOU.

 

14. ARBITRATION

THE FOLLOWING PROVISIONS REQUIRE YOU AND GIFTPIXEL TO ARBITRATE DISPUTES AND

LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.

You and GiftPixel will arbitrate any dispute, claim, or controversy arising from or related to these Terms or

the Service, except that neither you nor GiftPixel is required to arbitrate any dispute in which either party

seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names,

logos, trade secrets, or patents. ARBITRATION PREVENTS YOU AND GIFTPIXEL FROM SUING IN

COURT OR FROM HAVING A JURY TRIAL. You and GiftPixel will notify each other of any dispute within

30 days of when it arises and attempt informal resolution before any demand for arbitration. Arbitration

will be conducted confidentially in Santa Clara, California, by a single arbitrator in accordance with the

rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the

authority to grant any remedy that would otherwise be available in court. The arbitrator will render a

written opinion including findings of fact and law, and the award and determination of the arbitrator will

bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the

arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the

arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest

extent permitted by applicable law, Whether the dispute is heard in arbitration or in court, NO

ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION

OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR

FORMER USER OF THE APPLICATION, AND NEITHER YOU NOR GiftPixel will commence against the

other a class action, class ARBITRATION, or other representative action or proceeding.

You can choose to reject this agreement to arbitrate ("opt out") by sending GiftPixel a written opt-out

notice (the "Opt-Out Notice") to legal@giftpixel.com within 30 days after the date you accept these Terms

for the first time. The Opt-Out Notice must state that you do not agree to this agreement to arbitrate and

must include your name, address, phone number, and email address. You must sign the Opt-Out Notice

for it to be effective. If you opt-out of this agreement to arbitrate, all other parts of these Terms will

continue to apply.

 

15. VENUE; GOVERNING LAW

The state and federal courts located in Santa Clara County, California, will have exclusive jurisdiction

over any suit in connection with the Service or these Terms that is not subject to arbitration, and you and

GiftPixel hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such

courts. These Terms and your use of or access to the Service will be governed by, construed in

accordance with, and enforced under the laws of the State of California, without resort to its conflict of law

provisions.

 

16. MISCELLANEOUS

Except as otherwise expressly elsewhere in these Terms, there will be no third party beneficiaries to

these Terms. Enforcement of these Terms is solely at GiftPixel's discretion, and failure to enforce any part

of these Terms in some instances does not constitute a waiver of GiftPixel's right to enforce the same or

other part of these Terms in other instances. As used in these Terms, "including" means "including

(without limitation)." The section headings of these Terms are for reference purposes only and will not

affect the meaning or interpretation of these Terms. If any provision of these Terms is or becomes

unlawful, void, or otherwise unenforceable (including the warranty disclaimers and liability limitations set

forth above), then that provision will be deemed superseded by a valid, enforceable provision that most

closely matches the intent of the original provision, and the remaining provisions of these Terms will

continue in full force and effect.

 

17. NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California Website users are entitled to the following specific

consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the

California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-

202, Sacramento, California 95834, or by telephone at (800) 952-5210.