HitAGift™
Mobile App End-User License Agreement
Thank you for accessing the HitAGift™ mobile
application (the “App”), as made available on mobile devices utilizing the Android®
or iOS operating system, as well as other
mobile devices where and to the extent available (collectively, “Mobile
Device”), by and through the Google Play® store, Apple Store® and other applicable venues (“Download
Venues”). The App is owned and operated by HitAGift (“HitAGift™,” “we,” “our” or “us”).
The App provides end-user visitors
(“Visitors”) with: (a) access to certain text, images, video, audio and other
content and information relating to the HitAGift™ Offerings (as defined
below) (collectively, “Content”); (b) a means to register as a member
(“Member”), either through the App or through the applicable Visitor’s Facebook®
account; and (c) access, as a Member, to certain promotional giveaways (each, a “Giveaway”) and together with the App, and Content,
the “HitAGift™ Offerings”).
The following HitAGift™ Mobile
App End-User License Agreement (“EULA”) is inclusive of the HitAGift™ Mobile
App Privacy Policy (“Privacy Policy”), the giveaway rules applicable to the Giveaways (“Giveaway Rules”) and any and all other applicable HitAGift™ operating rules,
policies, price schedules and other supplemental terms and conditions or
documents that may be published from time to time, which are expressly
incorporated herein by reference (collectively, and together with this EULA,
the “Agreement”). For purposes of the
Agreement, Members and Visitors shall be referred to, collectively, as "you", "your" or “End-Users”. By using and/or accessing the HitAGift™
Offerings, End-Users agree to comply with and be bound by the Agreement in its
entirety. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF AN END-USER DOES NOT AGREE TO THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THAT END-USER
IS NOT AUTHORIZED TO USE THE HitAGift™ OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS
OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND
THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER. THE AFOREMENTIONED PROVISIONS ARE AN
ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE
ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE
NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
Android®
and Google Play® are registered trademarks of Google, Inc. (“Google”). Apple Store® is a registered trademark of Apple Inc. (“Apple”). Facebook®
is a registered trademark of Facebook, Inc. (“Facebook”). Please
be advised that HitAGift™ is not in any way affiliated with Facebook, Apple or Google,
and the HitAGift™ Offerings are not endorsed, administered or sponsored by Facebook, Apple or
Google.
1. Scope; Modification of Agreement.
The Agreement constitutes the entire and only agreement between End-Users
and HitAGift™ with
respect to End-Users’ use of the HitAGift™ Offerings, and supersedes all
prior or contemporaneous agreements, representations, warranties and/or
understandings with respect to same. We
may amend the Agreement from time to time in our sole discretion, without
specific notice to our End-Users; provided,
however, that any amendment or modification to the arbitration provisions,
prohibition on class action provisions or any other provisions applicable to
dispute resolution (collectively, “Dispute Resolution Provisions”) shall not
apply to any disputes incurred prior to the applicable amendment or
modification. The latest Agreement will
be posted by and through the App, and End-Users should review the Agreement
prior to using any HitAGift™ Offerings. By an
End-User’s continued use of the HitAGift™ Offerings, that End-User hereby
agrees to comply with all of the terms and conditions contained within the
Agreement effective at that time (other than with respect to disputes arising
prior to the amendment or modification of the Dispute Resolution Provisions,
which shall be governed by the Dispute Resolution Provisions then in effect at
the time of the subject dispute).
2. Requirements; Necessary Equipment;
Wireless Charges. The HitAGift™ Offerings are not
intended for use by: (a) individuals who are unable to enter into legally
binding contracts under applicable law; and/or (b) individuals under eighteen
(18) years of age (or the applicable age of majority, if greater than eighteen
(18) years of age). If you are under
eighteen (18) years of age (or the applicable age of majority if greater than
eighteen (18) years of age) and/or if you are unable to enter into legally
binding contracts under applicable law, you do not have permission to use
and/or access the HitAGift™ Offerings.
End-Users shall be
responsible, at all times, for ensuring that they have a Mobile Device,
Internet connection, wireless service plan and/or other equipment necessary to
access and use the App and other HitAGift™ Offerings. HitAGift™ does not guarantee
that the App and associated HitAGift™ Offerings can be
accessed: (i) on all Mobile Devices; (ii) through all wireless service plans;
and/or (iii) in all geographical areas. HitAGift™ does not
guarantee the quality, speed or availability of your Mobile Device’s Internet
connection. Standard messaging, data and
wireless access fees may apply to your use of the App and associated HitAGift™
Offerings. You are fully responsible for
all such charges, and HitAGift™ has no liability or
responsibility to you, whatsoever, for any such charges billed by your wireless
carrier.
3. Installation; Uninstall.
Installation. HitAGift™ has made commercially reasonable efforts to provide
End-Users with clear, concise and complete disclosure before End-Users download/install
the App or enter a Giveaway, including a
description of the primary functions of the App. The App requires End-User consent prior to
installation.
Uninstall. The App can be completely uninstalled in a
straightforward manner and without requiring undue effort or skill, in most
cases by using the traditional "add/remove" programs function
contained within your Mobile Device.
Please be advised that in some instances, you may be required to restart
your Mobile Device before all remnants of the App are completely uninstalled
and removed from your Mobile Device.
THE APP IS NOT SPYWARE OR ADWARE. THE APP WILL NOT DELIVER ADVERTISEMENTS TO
YOUR MOBILE DEVICE, ALTHOUGH YOU MAY BE SHOWN ADVERTISEMENTS WITHIN THE APP
INTERFACE.
4. Registration; Account Rejection and/or
Termination. In order to utilize certain of
the HitAGift™ Offerings, End-Users may be required to submit a registration
form (each, a “Form”) with information (“App
Registration Data”) that varies depending on whether the End-User is attempting to register
via her/his Facebook® account, and whether the
End-User is attempting to claim a prize in connection with a Giveaway (each, a “Prize”).
The information that End-Users
must supply on the applicable Form where an End-User is redeeming a Prize may
include, without limitation: (a) the End-User’s full
name; (b) the End-User’s screen name; (c) the End-User’s
e-mail address; (d) the End-User’s mailing address; (e) the End-User’s date of
birth; (f) the End-User’s gender; and/or (g) any other information requested by
HitAGift™ on the applicable Form (collectively, “Prize Registration Data”). Where an End-User
accesses certain of the HitAGift™
Offerings using her/his
Facebook® account, HitAGift™ may collect some or all of the following
(depending on the End-User’s Facebook® account settings and the discretion
of Facebook®): (i) the End-User’s e-mail address; (ii) the information listed in
the “About Me” section of the End-User’s Facebook® account; (iii) the “interests”
associated with the End-User’s Facebook® account; (iv) the End-User’s
Facebook® account ID and the “likes” associated with the End-User’s
Facebook® account; (v) the End-User’s Facebook® profile picture; and (vi) any
other information collected via the Facebook® account interface, depending on the End-User’s
Facebook® account settings (collectively, “Facebook® Registration Data,” and
together with the App Registration Data and Prize Registration Data, the
“Registration Data”).
Each End-User agrees to provide
true, accurate, current and complete Registration Data, as necessary, in order
to maintain it in up to date and accurate fashion. HitAGift™ may reject an End-User’s Form,
reject an End-User’s attempted Facebook® registration and/or terminate an End-User’s HitAGift™
Offerings account (“Account”) at any time and for any reason, in its sole
discretion. Such reasons may include,
without limitation, where: (A) HitAGift™ believes that such End-User is in
any way in breach of the Agreement; (B) HitAGift™ believes that such End-User
is engaged in any improper conduct in connection with the HitAGift™
Offerings; and/or (C) HitAGift™ believes that such End-User is, at any time,
conducting any unauthorized commercial activity by and/or through the HitAGift™
Offerings.
As part of the registration
process, End-Users will be provided with, or must select, a user name; provided, that, where an End-User
accesses certain
of the HitAGift™ Offerings using her/his Facebook® account, that User’s Facebook®
account user name may be automatically assigned as that End-User’s HitAGift™ user name. If the user name that an End-User
requests is not available, that End-User will be asked to supply another user
name. If HitAGift™ provides an End-User
with a user name, that End-User can change that user name, or the one that the End-User
selected during registration, at any time through her/his Account settings. Each End-User agrees to notify HitAGift™ of
any known or suspected unauthorized use(s) of her/his Account, or any known or
suspected breach of security, including loss, theft, or unauthorized disclosure
of her/his user name. Each End-User
shall be responsible for maintaining the confidentiality of her/his user name and Account.
Each End-User agrees to accept responsibility for all activities that occur
through use of her/his user name and Account. Any fraudulent, abusive or otherwise illegal
activity engaged in by any End-User, or any entity or person with access to
that End-User’s user name and/or Account may be grounds for termination of that
End-User’s Account, in HitAGift’s™ sole discretion, and that End-User may be
reported to appropriate law enforcement agencies.
5. The HitAGift™ Offerings; Legal
Compliance.
(a) Compliance with Applicable Law. By accessing and using the HitAGift™
Offerings, each End-User agrees to use the HitAGift™ Offerings in accordance
with all applicable HitAGift™ guidelines, as well as all applicable local,
state, national, federal and international laws including, without limitation,
any and all laws applicable to sweepstakes, contests, promotions, rewards, lotteries,
gambling, privacy laws and the Federal Trade Commission Guidelines Concerning
the Use of Endorsements and Testimonials (“Endorsements Guidelines”)
(collectively, “Applicable Law”).
(b) App.
Download Venues.
The Agreement is entered into between you and HitAGift™, and not with the applicable Download Venue that you
use to access the App. As between HitAGift™ and any participating
Download Venue, HitAGift™ is
solely responsible for the App. No
Download Venue has any obligation to furnish any maintenance and/or support
services with respect to the App. The Download
Venues are third-party owned and
operated websites. Use of those stores
shall be governed by the applicable venue’s agreements, terms and
conditions. HitAGift™ does not
control the Download Venues or any of the actions, policies or decisions made
by the operators of those stores. If you accessed or downloaded the App from
the Apple® Store, then you agree to use the App only: (i) on an Apple®-branded
product or device that runs iOS (Apple’s® proprietary operating system
software); and (ii) as permitted by the “Usage Rules” set forth in the Apple®
Store Terms of Service, as applicable.
Basic Functionality.
For purposes of the Agreement,
the term “App” includes all HitAGift™ and third-party software applications,
files, associated media, printed materials and/or electronic documentation that
may be used in connection with the App’s functionality. The App enables End-Users
to utilize the Platform and API by and through their Mobile Devices. Each
End-User acknowledges and agrees that access to, and the
functionality of, the App may be interrupted and limited, and may not be error
free. Each End-User understands and agrees that HitAGift™ shall not be liable to any End-User or third-party
for any claim in connection with such End-User’s use of, or inability to use,
the App.
Updates/Bug
Fixes. HitAGift™ reserves the
right (but is not obligated) to add additional features or functions to the
existing App, and to provide bug fixes, error corrections, patches, updates, new
releases or any other component not specified within this EULA, from time to
time. When installed on an End-User’s
Mobile Device, the App periodically communicates with HitAGift™ servers. HitAGift™ may require the updating of the App residing on an
End-User’s Mobile Device when HitAGift™ releases a new version of the App, or when HitAGift™ makes new
features available. You understand, and expressly agree that this update may
occur automatically or upon prior notice to the End-User and may occur all at
once or over multiple sessions, in HitAGift’s™ sole and absolute discretion. Each End-User understands that we may require
that End-User’s review and acceptance of our then-current Agreement before that
End-User will be permitted to use any subsequent versions of the App. Each End-User acknowledges and agrees that HitAGift™ has no
obligation to make any subsequent versions of the App available to that End-User,
or to provide bug fixes, error corrections, patches, new releases or any other
component not specified within the Agreement.
Third-party
Software. ANY THIRD-PARTY SOFTWARE, AS
WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE APP
ARE MADE AVAILABLE FOR USE AT EACH END-USER’S SOLE OPTION AND RISK. IF AN END-USER CHOOSES TO USE SUCH THIRD-PARTY
SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY'S LICENSING
AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. HitAGift™ IS NOT RESPONSIBLE FOR ANY THIRD-PARTY
SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY END-USER’S USE OF, OR
INABILITY TO USE, THIRD-PARTY SOFTWARE.
License Grant/Termination.
Subject to the terms and conditions of the Agreement, HitAGift™ hereby
grants to each End-User a personal, non-exclusive, non-transferable, revocable
and limited license to access and use the App on up
to two (2) Mobile
Devices, where such Mobile Devices are owned or leased by such End-User. HitAGift™
may terminate the license set forth in this Section 5(b) and/or disable, remove
or change the App and/or any portion thereof in its sole discretion at any
time, with or without notice, by remote updates or otherwise. The license set forth in this Section 5(b) shall be in effect unless and until this license is
terminated by HitAGift™. In addition, this license will terminate
immediately with respect to an End-User if that End-User fails to comply with
any term or condition of the Agreement.
Each End-User agrees upon expiration or termination of this license to
immediately un-install the App.
License/Usage Restrictions.
THE APP IS LICENSED TO END-USERS, NOT SOLD. END-USERS MAY NOT SUBLICENSE, ASSIGN, RESELL,
SHARE, PLEDGE, RENT OR TRANSFER ANY OF THEIR RIGHTS UNDER THE AGREEMENT IN
RELATION TO THE APP, ANY PORTION THEREOF OR THE HitAGift™ OFFERINGS.
EXCEPT AS EXPRESSLY PERMITTED BY COPYRIGHT LAWS, NO COPYING,
REDISTRIBUTION, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING OR
PUBLICATION OF THE APP IS PERMITTED WITHOUT THE EXPRESS PERMISSION OF HitAGift™,
WHICH CONSENT SHALL BE AT HitAGift’S™ SOLE AND ABSOLUTE DISCRETION. ANY SUCH COPY THAT IS MADE IS SUBJECT TO THE
PROVISIONS OF THE AGREEMENT, AND ALL TITLES, TRADEMARKS, COPYRIGHT NOTICES AND
OTHER LEGENDS SHALL BE REPRODUCED ON SUCH COPY.
END-USERS MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE,
DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE APP OR OTHERWISE ATTEMPT TO: (i)
DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY
PROTECTION MECHANISMS ASSOCIATED WITH THE APP INCLUDING, WITHOUT LIMITATION,
ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE APP; OR
(ii) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR
ORGANIZATION FORM OF THE APP. END-USERS
SHALL NOT USE THE APP TO DEVELOP ANY PRODUCT AND/OR SERVICE THAT HAS THE SAME
OR ANY SIMILAR FUNCTION AS THE APP OR ANY OTHER HitAGift™ OFFERINGS.
Export Restrictions.
Each End-User agrees that the App may not be transferred or exported
into any other country, or used in any manner prohibited by U.S. or other
applicable export laws and/or regulations.
(c) Giveaways. HitAGift™ may, in its sole discretion,
offer Giveaways from time
to time. Subject to the age requirements set forth in
Section 2 above, HitAGift™ Giveaways shall be free to enter
for End-Users, and shall be governed by separate Giveaway Rules. End-Users participating in the Giveaways will be
eligible to win prizes consisting of cash and/or other merchandise, as set
forth in the applicable Giveaway Rules.
(e) General Disclaimers. ALL DETERMINATIONS OF HitAGift™
WITH RESPECT TO GIVEAWAY ENTRY WILL
BE MADE IN HitAGift’S™ SOLE AND ABSOLUTE DISCRETION, AND WILL BE FINAL AND
BINDING ON YOU. YOU UNDERSTAND AND AGREE
THAT HitAGift™ IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER WHATSOEVER FOR YOUR
INABILITY TO ENTER ANY GIVEAWAYS. HitAGift™ IS NOT
RESPONSIBLE FOR ATTEMPTED GIVEAWAY ENTRIES THAT
ARE LOST, LATE, ILLEGIBLE, MISDIRECTED, DAMAGED, INCOMPLETE OR INCORRECT, OR
FOR YOUR FAILURE, AT ANY TIME, TO ENTER A GIVEAWAY.
(f) Content. Subject to the terms and conditions of the Agreement,
End-Users that possess the requisite technology shall have the opportunity to
view, download and/or interact with all or some of the Content made available
by and through the App and/or other HitAGift™ Offerings. The Content is compiled, distributed and
displayed by HitAGift™, as well as
third-party content providers, such as advertisers (collectively, “Third-Party
Providers”). HitAGift™ does not
control the Content provided by Third-Party Providers that is made available by
and through the HitAGift™ Offerings. Such
Third-Party Providers are solely responsible for the accuracy, completeness,
appropriateness, safety and/or usefulness of such Content. The Content should not necessarily be relied
upon. HitAGift™ does not
represent or warrant that the Content and other information posted by and/or
through the HitAGift™ Offerings
is accurate, complete, up-to-date or appropriate. End-Users understand and agree that HitAGift™ will not be
responsible for, and HitAGift™ undertakes no
responsibility to monitor or otherwise police, Content provided by Third-Party
Providers. End-Users agree that HitAGift™ shall have
no obligation and incur no liability to such End-Users in connection with any
Content. End-Users may find certain
Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety
when using the Content.
6. Representations and Warranties. Each End-User hereby represents and warrants to HitAGift™
as follows: (a) the Agreement constitutes such End-User’s legal, valid and
binding obligation which is fully enforceable against such End-User in
accordance with its terms; (b) such End-User understands and agrees that such End-User
has independently evaluated the desirability of utilizing the HitAGift™
Offerings and that such End-User has not relied on any representation and/or
warranty other than those set forth in the Agreement; and (c) such End-User’s
performance under the Agreement and such End-User’s use of the HitAGift™
Offerings will not: (i) violate any Applicable Law; and/or (ii) otherwise
infringe upon the rights of any third parties including, without limitation,
those of copyright, patent, trademark, trade secret or other intellectual
property right, false advertising, unfair competition, defamation, invasion of
rights of celebrity, violation of any anti-discriminatory law or regulation, or
any other right of any person or entity.
7. Indemnification. Each
End-User agrees to indemnify,
defend and hold HitAGift™, its parents, affiliates and/or subsidiaries, and
each of their respective officers, partners, contractors, members, managers,
employees, agents and attorneys, harmless from and against any and all
liabilities, claims, actions, suits, proceedings, judgments, fines, damages,
costs, losses and expenses (including reasonable attorneys’ fees, court costs
and/or settlement costs) arising from or related to: (a) End-User’s breach of
the Agreement and/or any representation or warranty contained herein; (b) any
allegation that End-User has infringed upon the trademark, trade name, service
mark, copyright, license, intellectual property or other proprietary right of
any third-party; and/or (c) End-User’s unauthorized and/or improper use of the HitAGift™
Offerings.
8. License Grant. Each
End-User is granted a non-exclusive, non-transferable, revocable and limited
license to access and use the HitAGift™ Offerings. HitAGift™ may terminate this license at any
time for any reason. Unless otherwise
expressly authorized by HitAGift™ in writing in each instance, End-Users may
only use the HitAGift™ Offerings for their own personal, non-commercial
use. No part of the HitAGift™
Offerings may be reproduced in any form or incorporated into any information
retrieval system, electronic or mechanical. No End-User or other third-party may use any
automated means or form of scraping or data extraction to access, query or
otherwise collect material from the HitAGift™ Offerings except as expressly
permitted by HitAGift™. No End-User or
other third-party may use, copy, emulate, clone, rent, lease, sell, modify,
decompile, disassemble, reverse engineer or transfer the HitAGift™ Offerings,
or any portion thereof. No End-User or
other third-party may create any “derivative works” by altering any aspect of
the HitAGift™ Offerings. No End-User
or other third-party may use the HitAGift™ Offerings in conjunction with any
other third-party content. No End-User
or other third-party may exploit any aspect of the HitAGift™ Offerings for
any commercial purposes not expressly permitted by HitAGift™. Each End-User further agrees to indemnify and
hold HitAGift™ harmless for that End-User’s failure to comply with this
Section 8. HitAGift™ reserves any
rights not explicitly granted in the Agreement.
9. Proprietary Rights. The HitAGift™
Offerings, as well as the organization, graphics, design, compilation, magnetic
translation, digital conversion, software, services and other matters related
to same, are protected under applicable copyrights, trademarks and other
proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication or any other
use not expressly permitted under this Agreement by
any End-User or other third-party of any part of the HitAGift™ Offerings is
strictly prohibited. No End-User or
other third-party acquires ownership rights in or to any content, document,
software, services or other materials viewed by or through the HitAGift™
Offerings. The posting of information or
material by and through the HitAGift™ Offerings does not constitute a waiver
of any right in or to such information and/or materials. The “HitAGift” name and logo are trademarks
of HitAGift. All other trademarks, including those
associated with the Prizes, are the property of their respective owners. The
use of any trademark without the applicable trademark owner's express written
consent is strictly prohibited.
10. Legal
Warning. Any attempt by any individual to damage,
destroy, tamper with, vandalize and/or otherwise interfere with the operation
of the HitAGift™ Offerings is a violation of criminal and civil law and HitAGift™
will diligently pursue any and all remedies in this regard against any
offending individual or entity to the fullest extent permissible by law and in
equity.
11. Disclaimer of Warranties. THE
HitAGift™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR
THROUGH SAME ARE PROVIDED TO END-USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS
AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT
PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE
DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION
THEREOF, HitAGift™ MAKES NO WARRANTY THAT THE HitAGift™ OFFERINGS AND/OR
ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL
MEET ANY END-USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR
ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL
COMPONENTS; (D) WILL RESULT IN ANY ECONOMIC BENEFIT; AND/OR (E) WILL BE
ACCURATE OR RELIABLE. THE HitAGift™
OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH
SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. HitAGift™ WILL NOT BE LIABLE FOR THE
AVAILABILITY OF THE UNDERLYING INTERNET AND/OR MOBILE CONNECTION ASSOCIATED
WITH THE HitAGift™ OFFERINGS. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY END-USER FROM HitAGift™
OR OTHERWISE THROUGH OR FROM THE HitAGift™ OFFERINGS SHALL CREATE ANY
WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
12. Limitation of Liability. EACH
END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT HitAGift™ SHALL NOT BE LIABLE
TO THAT END-USER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES
(EVEN IF HitAGift™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO
THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE APP,
THE HitAGift™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR
THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES
RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS
PURCHASED OR OBTAINED FROM OR THROUGH THE HitAGift™ OFFERINGS; (C) ANY
DISPUTE BETWEEN ANY END-USERS AND/OR THIRD PARTIES; (D) ANY MATTER RELATING TO
ANY END-USER CONTENT, PERKS AND/OR CAMPAIGNS; (E) THE UNAUTHORIZED ACCESS TO,
OR ALTERATION OF, ANY END-USER’S REGISTRATION DATA; (F) END-USER’S FAILURE TO
REALIZE ANY ECONOMIC BENEFIT; AND (G) ANY OTHER MATTER RELATING TO THE HitAGift™
OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH
SAME. THIS LIMITATION APPLIES TO ALL
CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION
AND ANY AND ALL OTHER TORTS. EACH END-USER
HEREBY RELEASES HitAGift™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND
CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. NO ACTION, REGARDLESS OF FORM, ARISING
OUT OF THE HitAGift™ OFFERINGS
AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY END-USER OR HitAGift™
MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF
ACTION. THE NEGATION OF
DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN
BETWEEN EACH END-USER AND HitAGift™.
ACCESS TO THE HitAGift™ OFFERINGS WOULD NOT BE PROVIDED TO ANY END-USERS
WITHOUT SUCH LIMITATIONS. SOME
JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH
JURISDICTIONS THE LIABILITY OF HitAGift™ SHALL BE LIMITED TO THE MAXIMUM
EXTENT PERMITTED BY LAW.
13. Third-party Websites.
The HitAGift™ Offerings contain links to other websites on the
Internet that are owned and operated by third parties including, without
limitation, the Download Venues. HitAGift™
does not control the information, products or services available on or through
these third-party websites. The
inclusion of any link does not imply endorsement by HitAGift™ of the
applicable website or any association with the website’s operators. Because HitAGift™ has no control over such
websites or resources, each End-User agrees that HitAGift™ is not responsible
or liable for the availability or the operation of such external websites, for
any material located on or available from or through any such websites or for
the protection of any End-User’s data privacy by third parties. Each End-User further agrees that HitAGift™
shall not be responsible or liable, directly or indirectly, for any loss or
damage caused by the use of or reliance on any such material available on or
through any such site or any such dealings.
14. Editing, Deleting and Modification. We reserve the right in our sole discretion
to edit and/or delete any documents, information or other content appearing by
and/or through the App and/or other HitAGift™ Offerings.
15. Registration Data and other End-User
Information. All material submitted
by End-Users through or in association with the HitAGift™ Offerings
including, without limitation, the Registration Data, shall be subject to the
Privacy Policy. For a copy of the
Privacy Policy, please Click
Here.
16. Dispute Resolution Provisions. The Agreement shall be
treated as though it were executed and performed in Palo Alto,
California
and shall be governed by and construed in accordance with the laws of the State
of California (without regard to conflict of law
principles). Should a dispute arise concerning the HitAGift™ Offerings, the terms and
conditions of the Agreement or the breach of same by any party hereto: (a)
the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization
as mutually agreed upon by the parties; and (b)
each End-User agrees to first commence a formal dispute proceeding by
completing and submitting an Initial Dispute Notice which can be found Here. We may
choose to provide petitioning End-Users with a final written settlement offer
after receiving such End-User’s Initial Dispute Notice (“Final Settlement
Offer”). If we provide a petitioning End-User
with a Final Settlement Offer and that End-User does not accept it, or we
cannot otherwise satisfactorily resolve that End-User’s dispute and that End-User
wishes to proceed, that End-User must submit its dispute for resolution by
arbitration before a reputable arbitration organization as mutually agreed upon
by the parties, in that End-User’s county of residence, by filing a separate
Demand for Arbitration, which is available Here. If the arbitrator awards an End-User
relief that is greater than our Final Settlement Offer, then we will pay all
filing, administration and arbitrator fees associated with the arbitration and,
if that End-User retained an attorney to represent it in connection with the
arbitration, we will reimburse any reasonable attorneys’ fees that such End-User’s
attorney accrued for investigating, preparing and pursuing the claim in
arbitration. Any award rendered shall be
final and conclusive to the parties and a judgment thereon may be entered in
any court of competent jurisdiction.
Nothing contained herein shall be construed to preclude any party from:
(i) seeking injunctive relief in order to protect its rights pending an outcome
in arbitration; and/or (ii) pursuing the matter in small claims court rather
than arbitration. Although we may have a
right to an award of attorneys’ fees and expenses if we prevail in arbitration,
we will not seek such an award from any End-User unless the arbitrator
determines that such End-User’s claim was frivolous.
To the extent permitted by law, each End-User agrees that it will
not bring, join or participate in any class action lawsuit as to any claim,
dispute or controversy that it may have against HitAGift™ and/or its
employees, officers, directors, members, representatives and/or assigns. Each End-User agrees to the entry of
injunctive relief to stop such a lawsuit or to remove it as a participant in
the suit. Each End-User agrees to pay
the attorney’s fees and court costs that HitAGift™ incurs in seeking such relief. This provision preventing End-Users from
bringing, joining or participating in class action lawsuits: (A) does not
constitute a waiver of any End-User’s rights or remedies to pursue a claim
individually and not as a class action in binding arbitration as provided
above; and (B) is an independent agreement.
Any End-User may opt-out of these dispute resolution provisions by
providing written notice of her/his decision within thirty (30) days of the
date that it first accesses the App.
17. Miscellaneous. To the extent that anything
in or associated with the HitAGift™ Offerings is in conflict or inconsistent
with the Agreement, the Agreement shall take precedence (other than with
respect to the applicable Giveaway
Rules, which shall govern the subject Giveaways). HitAGift’s™ failure to enforce any
provision of the Agreement shall not be deemed a waiver of such provision nor
of the right to enforce such provision.
The parties do not intend that any agency or partnership relationship be
created through operation of the Agreement.
Should any part of the Agreement be held invalid or unenforceable, that
portion shall be construed consistent with applicable law and the remaining
portions shall remain in full force and effect.
HitAGift™ may assign its rights and obligations under the Agreement,
in whole or in part, to any party at any time without notice to you. The Agreement may not, however, be assigned by
you, and you may not delegate your duties under it. Headings are for reference purposes only and
in no way define, limit, construe or describe the scope or extent of such
section.
18. Contact Us. If any End-User has any questions about the
Agreement, HitAGift™ Offerings or the practices of HitAGift™, that End-User
can email us as at: hit.a.gift.service@gmail.com. If any
End-User prefers to mail us, please send us mail to: 555 Bryant St., Suite 218,
Palo Alto, California 94301; provided, however,
that there may be delays in responding to inquiries/notices send via mail.