Giwaza Online Standard Terms and Conditions
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE FAQ BEFORE USING GIWAZA.COM. USE OF GIWAZA.COM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT USE GIWAZA.COM.
Introduction. This agreement ("Agreement") between You and Giwaza LLC ("Giwaza") consists of these Giwaza.com (the "Site") Standard Terms and Conditions ("Terms and Conditions"). A description of the Site, as generally offered by Giwaza, is available at the Site Frequently Asked Questions ("FAQ") URL, located at http://www.Giwaza.com/faq.html, or such other URL as Giwaza may provide from time to time. "You" or "User" means any entity identified in an enrollment or transaction form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1. Site Use. Use of the Site is subject to Your continued compliance with the Site Policies ("Site Policies"), located at http://www.Giwaza.com/policies.html, and/or such other URL as Giwaza may provide from time to time. Giwaza reserves the right to refuse use to anyone at any time in its sole discretion. By using the Site, You represent that You are at least 18 years of age. Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Giwaza (including by electronic mail).
2. Giving. You agree that all contributions made through Giwaza.com are final, irrevocable gifts. Contributions will be used in the following ways:
· Purchase of art. Art purchased may differ from that featured on the Site at the time of the gift (at the Gift Organizer's discretion.) Payment will be made to the Gift Organizer or the Seller, for the benefit of the Gift Beneficiary.
· Purchase of a gift certificate from an Artist or Gallery. Artist or Gallery may differ from that featured on the Site at the time of the gift (at the Gift Organizer's discretion.) Payment will be made to the Gift Organizer or the Seller, for the benefit of the Gift Beneficiary.
· Purchase of a Gift Card (American Express or similar) for the Gift Beneficiary, to be provided to the Gift Organizer.
· Payment of Giwaza.com service fee, as indicated by http://giwaza.com/popup/?c=fees, or such other URL as Giwaza may provide from time to time. Every contribution to a Giwaza Gift includes partial payment of the Giwaza.com service fee.
Refunds to Givers are very rare, and will be issued solely at Giwaza discretion.
3. Organizing Gifts. Gift Organizers agree that your sole intent is to organize a group gift of Art, for the benefit of a Gift Beneficiary named during the Gift setup process. The Gift Beneficiary cannot be changed after a Gift has been launched. You agree that all contributions made through Giwaza.com are final, irrevocable gifts. You acknowledge that the Art identified at Gift launch may no longer be available from the Seller when the Gift closes, and agree that all Contributions will be used/distributed in the manner specified in section (2), above.
You agree to use Giwaza.com to facilitate and organize a group gift of Art. Giwaza.com can be used to assist with the solicitation, and safekeeping of funds, but Art purchase transactions are between Gift Organizers and Sellers only, and do not involve Giwaza in any way. In no circumstance will Giwaza take possession of, or be liable for, Art.
4. Selling Art. Sellers agree that Giwaza.com is a service that may be used to facilitate group gifts of art, and that all Contributions will be used/distributed in the manner specified in section (2), above. Sellers are not obligated to make specific Art available to Gift Organizers and Gift Beneficiaries, but agree to transact with Gift Organizers and Gift Beneficiaries in good faith once a Gift has been agreed upon and launched. If Seller receives another offer to purchase a piece or pieces of Art that are subject of an ongoing Giwaza Gift, Seller agrees to notify Gift Organizer immediately and provide a 48-hour window for the Organizer to make payment in full.
5. Parties' Responsibilities. You are solely responsible for Giwaza.com web pages created and edited by you, including all content and images, to the proper implementation of Giwaza's specifications, and adherence to the terms of this Agreement, including compliance with the Site Policies. Giwaza reserves the right to investigate, at its own discretion, any activity that may violate this Agreement. In addition, Giwaza shall not be obligated to provide notice to You in the Gift that any page or image is not being displayed properly.
6. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) display any text or image via Giwaza.com, or link to any Web page or any Web site, that contains any pornographic, hate-related, violent, or illegal content; (ii) act in any way that violates any Site Policies posted on the Giwaza Web Site, as may be revised from time to time, or any other agreement between You and Giwaza; (iii) disseminate malware; (iv) create a new account to use the Site after Giwaza has terminated this Agreement with You as a result of your breach of this Agreement; (vi) maliciously or fraudulently email any address(es) via the Giwaza.com website; (vii) email any address(es) via the Giwaza.com website for any purpose other than organizing a group gift of Art in compliance with this Agreement; or (vi) engage in any action or practice that reflects poorly on Giwaza or otherwise disparages or devalues Giwaza’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
7. Termination; Cancellation. You may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel Your participation in the Site to support@Giwaza.com. This Agreement will be deemed terminated within ten (10) business days of Giwaza's receipt of Your notice. Giwaza may investigate any activity that may violate this Agreement. Giwaza may at any time, in its sole discretion, terminate all or part of the Site, terminate this Agreement, or suspend or terminate the participation of any User in all or part of the Site for any reason. Upon termination of participation of any User of the Site or termination of this Agreement for any reason, Sections 7-11 and 15-18 shall survive termination.
8. Confidentiality. You agree not to disclose Giwaza Confidential Information without Giwaza's prior written consent. "Giwaza Confidential Information" includes without limitation: (a) all Giwaza software, technology, programming, specifications, materials, guidelines and documentation relating to the Site; (b) click-through rates or other statistics relating to performance in the Site provided to You by Giwaza; and (c) any other information designated in writing by Giwaza as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Giwaza’s gross payments to You pursuant to the Site. Giwaza Confidential Information does not include information that has become publicly known through no breach by You or Giwaza, or information that has been (i) independently developed without access to Giwaza Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
9. No Guarantee. Giwaza makes no guarantee regarding the level of gifts that may be accumulated through a Gift, or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Giwaza does not guarantee the Site will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to Gifts beyond Giwaza’s (or its wholly owned subsidiaries’) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Giwaza (or its wholly owned subsidiaries) or Your servers are located or co-located.
10. No Warranty. GIWAZA MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ART QUALITY, MERCHANTIBILITY, RECIPIENT SATISFACTION, OR ART FITNESS FOR ANY PARTICULAR PURPOSE. GIWAZA SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH THE DISPLAY OF TEXT OR IMAGES WRITTEN OR UPLOADED BY USERS.
11. Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE SITE, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) GIWAZA'S AGGREGATE LIABILITY TO SELLER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY GIWAZA TO SELLER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
12. Payment. Sellers shall receive monthly payment related to their completed or closed Gifts. Unless otherwise agreed to by the parties in writing (including by electronic mail), payments to You shall be sent by Giwaza within approximately thirty (30) days after the end of each calendar month that contain a Gift closing. In the Gift the Agreement is terminated, Giwaza shall pay Your earned balance to You within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by You (following Giwaza's receipt of Your written request, including by email, to terminate the Agreement) or by Giwaza. Notwithstanding the foregoing, Giwaza shall not be liable for any payment based on any Gifts which it reasonably deems in violation of this agreement or illegal. To ensure proper payment, You are solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. Activities (as described on the Giwaza Tax Information Page located at http://www.Giwaza.com/taxinfo, or such other URL as Giwaza may provide from time to time) or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Site. Giwaza may change its pricing and/or payment structure at any time. If You dispute any payment made under the Site, You must notify Giwaza in writing within thirty (30) days of any such payment; failure to so notify Giwaza shall result in the waiver by You of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Giwaza. No other measurements or statistics of any kind shall be accepted by Giwaza or have any effect under this Agreement. The payments made under this Agreement are for use by You only and may not be transferred or in any manner passed on to any third party (i.e., distributed to Properties managed by You that require separate payments) unless expressly authorized in writing by Giwaza (including by electronic mail). From time to time Giwaza may be holding funds, payments and other amounts due to You in connection with the Site. You acknowledge and agree that Giwaza may, without further notice to You, contribute to a charitable organization selected by Giwaza all funds, payments and other amounts related to the Site that are held by Giwaza and that are due to you (if any), but which Giwaza is unable to pay or deliver to You because Your account is Inactive (as defined below). “Inactive” means that, based on Giwaza’s records: (a) for a period of two (2) years or more You have not logged into your account or accepted funds, payments or other amounts that Giwaza has attempted to pay or deliver to You, and (b) Giwaza has been unable to reach You, or has not received adequate payment instructions from You, after contacting You at the address shown in Giwaza’s records.
13. Publicity. You agree that Giwaza may use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and Search Results Pages. If You wish to use Giwaza's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand Features"), You may do so, so long as such use is in compliance with this Agreement and in compliance with Giwaza's then current Brand Feature use guidelines, and any content contained or referenced therein, which guidelines may be found at the following URL: http://www.Giwaza.com/permissions/guidelines.html (or such other URL Giwaza may provide from time to time).
14. Representations and Warranties. You represent and warrant that (a) all of the information provided by You to Giwaza to use the Site is correct and current; (b) If Selling Art, you are the owner of the Art or You are legally authorized to act on behalf of the owner of such Art for the purposes of this Agreement and the Site; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder.
15. Your Obligation to Indemnify. You agree to indemnify, defend and hold Giwaza, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Site and/or Your breach of any term of this Agreement.
16. Giwaza Rights. You acknowledge that Giwaza owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Site including implied licenses, and excluding items licensed by Giwaza from third parties, and that You will not acquire any right, title, or interest in or to the Site except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Giwaza services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Site or proprietary information related thereto. You will not remove, obscure, or alter Giwaza's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Giwaza services, software, or documentation (including without limitation the display of Giwaza’s Brand Features). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17. Information Rights. Giwaza may retain and use, subject to the terms of the Giwaza Privacy Policy (located at http://www.Giwaza.com/privacy.html, or such other URL as Giwaza may provide from time to time), all information You provide, including but not limited to User demographics and contact and billing information. You agree that Giwaza may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your participation in the Site, including to third parties that reside in jurisdictions with less restrictive data laws than Your own. Giwaza may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Giwaza disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. Giwaza may share non-personally-identifiable information about You with advertisers, business partners, sponsors, and other third parties.
18. Miscellaneous. This Agreement shall be governed by the laws of California, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in San Francisco County, California. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Site after such terms have been updated by Giwaza. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Giwaza. Notwithstanding the foregoing, Giwaza may assign this Agreement to any affiliate at any time without notice. The relationship between Giwaza and You is not one of a legal partnership relationship, but is one of independent contractors.
19. Sales tax Sole Responsibility of Seller. You acknowledge that Giwaza is not a seller of art, nor a seller's agent, for purposes of collecting and remitting any applicable sales tax. If You are a Seller of art, You promise to withhold, report, and remit any sales tax due under any law or laws that applies to transactions You enter into via the Site.
20. Droit de Suite Sole Responsibility of Seller. You acknowledge that Giwaza is not a seller of art, nor a seller's agent, for purposes of California Civil Code Section 986 or any other applicable law dealing with original artist's resale commission, also known as droit de suite. If You are a Seller of art, You promise to withhold, report, and remit any applicable droit de suite due under any law that controls any transactions You enter into via the Site.
