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TERMS OF USE

The services offered on smartgiftit.com, smartgift.it, smart.gift, shopsmartgift.com, and smartgiftguides.com root domains (the “Root Domains”) are owned and operated by Smartgift, Inc. (D-U-N-S #: 049993668) whose registered office is at 175 Pearl Street, Brooklyn, NY 11201, United States. The terms of use set out below (the “Terms of Use”) govern the services offered on the Root Domains. It is important that you read the Terms of Use carefully before using our services. By using our services, you agree to be bound by the Terms of Use.

1. Eligibility

You must be at least 16 years old to access and use our services. If you are between the ages of 16 and 18 years old, you may use and access our services only under the supervision of your parent or guardian who has agreed to be bound by these terms.

2. Description of our services

We offer high quality services that allow you to send a gift to a recipient and for recipients to confirm your selection and their preferred shipping address before you complete the purchase.

SENDING A GIFT

If you would like to send a gift using our services, you can do so on the site of a participating merchant or on sites hosted by us. A call to action button labeled “Send as a Gift” or “SmartGift This Item” or a similar label will launch our sending experience. After providing the recipient’s name or nickname, and your name, email address, and phone number (when required) you will receive a unique shareable link that displays the digitally wrapped gift on our site.

It is your responsibility to share the link to the gift with the recipient using any means you like including by text message, email, social messenger, or simply writing it down on a piece of paper or greeting card and handing it to the recipient.

ACCEPTING A GIFT

After the recipient clicked or tapped the unique link on a device, the gift displays digitally wrapped on our site. The recipient can then reveal and preview the gift and select options such as their preferred size or color, if applicable, or swap for a different item according to rules determined by the participating merchant partner. Many participating merchant partners require to limit the selection of available swap items to items of the same price or less as the originally sent gift. Some participating merchant partners request that we show items of a slightly higher price as the originally sent gift in order to give recipients a larger selection to choose from.

To accept the gift, the recipient must enter their shipping information including their name, email address, phone number and their postal mailing address.

PURCHASING A GIFT

We collect the shipping information provided by the recipient and send it to you by email and text messages, if you opted in to receive such text messages, along with details of their chosen gift(s) and a link to the participating merchant’s site, so that you can conveniently purchase the chosen gift for the recipient. In many cases, this purchase process will be quite automated and the items confirmed by the recipient along with the shipping address provided by the recipient, will be prefilled in the participating merchant’s shopping cart upon clicking the purchase link.

3. Limitations

We are doing our best to provide a great experience to gift givers and recipients, but there are situations outside our control which could interfere with a seamless experience.

INCORRECT INFORMATION

We are not responsible for incorrect shipping information provided by the recipient of a gift or for errors made by the gift giver when entering shipping information on the merchant partner’s site during the purchase of the chosen product.

NETWORK DELIVERY ISSUES

Gift givers are solely responsible for delivering the unique link to the gift to their gift recipient. Gift givers should receive an email, and a text message if they opted in, when the recipient has accepted the gift.

CHANGES IN PRICE AND AVAILABILITY

Even though our gift giving and receiving experience is seamless and fast and despite in-stock checks that are in place with certain participating merchant partners, it is possible that a product that a gift giver intended to give or a product that a gift recipient has accepted is no longer available on a merchant partner’s site or that the price of the item has changed. We do not guarantee availability or price of items given or accepted using our services. The price and availability of any item are determined at the time the gift giver makes the actual purchase of the desired item on the merchant partner’s site.

WHAT HAPPENS AFTER THE PURCHASE OF THE ACCEPTED GIFT ON THE PARTICIPATING MERCHANT PARTNER’S SITE?

Since gift givers purchase the item chosen by the recipient on the participating merchant partner’s site, the participating merchant partner’s terms and conditions and privacy policy apply. It is the gift giver’s responsibility to provide accurate shipping information and to pay for shipping costs and taxes. Please refer to the participating merchant partner’s terms and conditions for payments, delivery, defect products, returns, refunds, cancellations and other conditions of purchase and service.

4. Use of our services

Please respect our proprietary technology as well as the rights and freedom of its users.

OWNERSHIP

We reserve all rights not expressly granted in these terms. Except for the license in these terms below, you are not granted any rights in or to our services by implication, estoppel, or other legal theory, and all rights in and to our services not expressly granted in these terms are hereby reserved and retained by us. All information, materials, and content including text, graphics, data, formatting, graphs, designs, HTML/CSS, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content is owned by us or our licensees. Our material is protected in all forms, media, and technologies now known or later developed.

LICENSE

Subject to these terms, we grant you a non-exclusive, non-transferable, revocable license to use our services. This license will govern any upgrades provided by us 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. We reserve the right to terminate such license at any time and for any or no reason.

RESTRICTIONS

You are solely responsible for your conduct (and the conduct of anyone who uses our services on your behalf or with your permission in connection with gifts you have sent, received or accepted) with respect to our services, 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 our services:

  • copy, adapt, hack, of reproduce our services;
  • distribute our services or make them available over a network where it could be used by multiple devices at the same time;
  • rent, lease, lend, sell, or sublicense our services;
  • modify, port, translate, or create derivative works of our services;
  • remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in our services;
  • decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of our services or any part of our services, except to the extent required by applicable law;
  • knowingly take any action that would cause our services or any part of them to be placed in the public domain;
  • use our services for anything else than sending, receiving, accepting or purchasing gifts from participating merchant partners
  • use our services in any manner that could interfere with, disrupt, negatively affect, or inhibit our other users from fully enjoying our services or that could damage, disable, overburden, or impair the functioning of our services;
  • stalk, intimidate, threaten, harass, or cause discomfort to other users of our services (including using our services to harass recipients of gifts by, e.g., sending unwanted or objectionable gifts);
  • harvest or collect information about other users of our services, or execute any ‘screen scrapping’ of our or our participating merchant partners’ sites without their consent;
  • impersonate or use our services on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • use our services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these terms;
  • infringe on any third party’s rights, including, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
  • execute any form of network monitoring or run a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between our services’ servers or any data not intended for you; or
  • infringe or violate any of our rights.

If you violate any of the foregoing restrictions, your right to use our services will stop immediately and automatically, and you will have infringed our copyright and other rights, which may subject you to prosecution and damages.

5. Data protection

We strongly believe in protecting user privacy and personal data. Any personal data collected and processed by us is governed by our privacy policy and the privacy policy of participating merchant partners. Please read those privacy policies for further information on how we and our participating merchant partners process personal data collected from users of our services.

6. Disclaimers

YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, OUR SERVICES, GIFTS THAT ARE BEING SENT, RECEIVED, ACCEPTED OR PURCHASED USING OUR SERVICES, PARTICIPATING MERCHANT PARTNERS, ALL OUR 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 WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OUR SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF OUR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN OUR SERVICES WILL BE CORRECTED.

7. Indemnification

You will defend, indemnify, and hold us harmless 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 our services or your violation (or alleged violation) of the Terms of Use or the rights of any third party.

8. Limitation of liability

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL WE 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, OUR SERVICES, GIFTS THAT ARE BEING SENT, RECEIVED, ACCEPTED OR PURCHASED USING OUR SERVICES, PARTICIPATING MERCHANT PARTNERS, ALL OUR MATERIAL, AND THIRD PARTY TRADEMARKS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

9. Arbitration

You and us will arbitrate any dispute, claim, or controversy arising from or related to these terms, except that neither you nor us are 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 US FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and us 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 the state of New York by a single arbitrator. 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 US 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 by sending us a written opt-out notice to info@smartgift.it 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. This procedure is the only way you can opt-out of this agreement to arbitrate. If you opt-out of this agreement to arbitrate, all other parts of these terms will continue to apply.

10. Governing law

You and us hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of the courts of the state of New York. The courts of the state of New York and the United States District Court for the Eastern District of New York will have exclusive jurisdiction over any suit in connection with the services or the Terms of Use that are not subject to arbitration, and you and us hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts. The Terms of Use and your access to or use of our services will be governed by, construed in accordance with, and enforced under the laws of the state of New York, without resort to its conflict of law provisions.

FOR USERS BASED IN ENGLAND, NORTHERN IRELAND, SCOTLAND OR WALES

If you are a resident of England, Northern Ireland, Scotland or Wales you may bring proceedings in relation to disputes or claims arising out of or in connection with the Terms of Use or your use of our services through our sites in your local courts.

FOR USERS BASED IN THE EUROPEAN ECONOMIC AREA OR IN CANADA

If you are a resident of the European Economic Area or Canada you may bring proceedings in relation to disputes or claims arising out of or in connection with the Terms of Use or your use of our services through our sites in your local courts.

Last updated November 10, 2020