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 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”).
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.
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: firstname.lastname@example.org. 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.