TERMS OF USE
Last updated October 11th, 2023
AGREEMENT TO TERMS
These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and GIFTD GmbH ("Company",“we”, “us”, or “our”), concerning your access to and use of the http://www.giftd.app website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto(collectively, the “Site”). We are registered in Germany and have our registered office at Muskauer Str.11a 10997 Berlin. Our VAT number is DE326770125. The Site provides an online marketplace for the following goods, products, and/or services: GIFTD offers you to give away your clothes to friends, family and neighbours. (the“Marketplace Offerings”). In order to help make the Site a secure environment for the purchase and sale of Marketplace Offerings, all users are required to accept and comply with these Terms of Use
. You agree that by accessing the Site and/or theMarketplace Offerings, you have read, understood, and agree to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OFUSE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND/OR THE MARKETPLACE OFFERINGS AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms ofUse from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site is not tailored to comply with industry-specific regulations (Health InsurancePortability and Accountability Act (HIPAA), Federal Information Security ManagementAct (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Site. You may not use the Site in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
TheSite is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site or use the Marketplace Offerings.
INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site and the Marketplace Offerings are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the“Content”) and the trademarks, service marks, and logos contained therein (the“Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the UnitedStates, international copyright laws, and international conventions. The Content and the Marks are provided on theSite “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site or the Marketplace Offerings and no Content or Marks maybe copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
USER REPRESENTATIONS
By using the Site or the Marketplace Offerings, you represent and warrant that:
(1) all registration information you submit will be true, accurate, current, and complete;
(2)you will maintain the accuracy of such information and promptly update such registration information as necessary;
(3) you have the legal capacity and you agree to comply with these Terms of Use;
(4) you are not a minor in the jurisdiction in which you reside;
(5) you will not access the Site or the Marketplace Offerings through automated or non-human means, whether through a bot, script or otherwise;
(6) you will not use the Site for any illegal or unauthorised purpose; and
(7) your use of theSite or the Marketplace Offerings will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
You may not use the Site or the Marketplace Offerings for any illegal or unauthorised purpose nor may you, in the use of Marketplace Offerings, violate any laws. Among unauthorised Marketplace Offerings are the following: intoxicants of any sort; illegal drugs or other illegal products; alcoholic beverages; games of chance; and pornography or graphic adult content, images, or other adult products. Postings of any unauthorised products or content may result in immediate termination of your account and a lifetime ban from use of the Site.
We are a service provider and make no representations as to the safety, effectiveness, adequacy, accuracy, availability, prices, ratings, reviews, or legality of any of the information contained on the Site or the Marketplace Offerings displayed or offered through the Site. You understand and agree that the content of the Site does not contain or constitute representations to be reasonably relied upon, and you agree to hold us harmless from any errors, omissions, or misrepresentations contained within the Site’s content. We do not endorse or recommend any Marketplace Offerings and the Site is provided for informational and advertising purposes only.
USER REGISTRATION
You may be required to register with the Site in order to access the MarketplaceOfferings. You agree to keep your password confidential and will be responsible for all use of your account and password.We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
MARKETPLACE OFFERINGS
We reserve the right to limit the quantities of the Marketplace Offerings offered or available on the Site. All descriptions or pricing of the Marketplace Offerings are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Marketplace Offerings at any time for any reason. We do not warrant that the quality of any of the Marketplace Offerings purchased by you will meet your expectations or that any errors in the Site will be corrected.
PURCHASES AND PAYMENT
We accept the following forms of payment:
- PayPal
- Visa
- Mastercard
You agree to provide current, complete, and accurate purchase and account information for all purchases of the Marketplace Offerings made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at anytime. All payments shall be in Euros.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorise us to charge your chosen payment provider for any such amounts upon placing your order.
If your order is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
REFUNDS POLICY
All sales are final and no refund will be issued.
PROHIBITED ACTIVITIES
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
1. Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
2. Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
3. Circumvent, disable, or otherwise interfere with security-related features of theSite, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
4. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site.
5. Use any information obtained from the Site in order to harass, abuse, or harm another person.
6. Make improper use of our support services or submit false reports of abuse or misconduct.
7. Use the Site in a manner inconsistent with any applicable laws or regulations.
8. Engage in unauthorised framing of or linking to the Site.
9. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming(continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the MarketplaceOfferings.
10. Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
11. Delete the copyright or other proprietary rights notice from any Content.
12. Attempt to impersonate another user or person or use the username ofanother user.
13. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or“passive collection mechanisms” or “pcms”).
14. Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
15. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Marketplace Offerings to you.
16. Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
17. Copy or adapt the Site’s software, including but not limited to Flash, PHP,HTML, JavaScript, or other code.
18. Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
19. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorised script or other software.
20. Use a buying agent or purchasing agent to make purchases on the Site.
21. Make any unauthorised use of the Marketplace Offerings, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretences.
22. Use the Marketplace Offerings as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavour or commercial enterprise.
USER GENERATED CONTRIBUTIONS
The Site may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Site, including but not limited to text, writings, video, audio, photographs, graphics, comments, suggestions, or personal information or other material (collectively,"Contributions"). Contributions may be viewable by other users of theSite and the Marketplace Offerings and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
2. You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorise us, the Site, and other users of the Site to use your Contributions in any manner contemplated by the Site and these Terms of Use.
3. You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Site and these Terms ofUse.
4. Your Contributions are not false, inaccurate, or misleading.
5. Your Contributions are not unsolicited or unauthorised advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
6. Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libellous, slanderous, or otherwise objectionable (as determined by us).
7. Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
8. Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
9. Your Contributions do not violate any applicable law, regulation, or rule.
10. Your Contributions do not violate the privacy or publicity rights of any third party .
11. Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
12. Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
13. Your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms of Use, or any applicable law or regulation.
Any use of the Site or the Marketplace Offerings in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site and the Marketplace Offerings.
INTERACTION AND MESSAGES ON THE SITE
1 Private messages.
The exchange of Private Messages between Users is for the purpose of exchanging information between Users regarding the Items in the Catalog. If a User sends Private Messages to another User, he/she must not send:
GIFTD may use automated software that is designed to use algorithms to detect contents of Private Messages that are contrary to good moral standards and public order or that are inappropriate, insulting, or defamatory. If the automated software detects a Private Message containing any such content, without limiting other remedies available to GIFTD, (i) the Private Message and User may be blocked and/or the Private Message may be hidden from the User to whom it was sent and (ii) the User who sent such Private Message may receive a warning reminding the User of his/her obligation to comply with these Terms and informing the User that GIFTD may take further steps such as suspending the User's Account in case of further violations. GIFTD’s use of such automated software does not create a monitoring obligation on GIFTD nor an obligation to actively search for unlawful activities and/or content on the Site and, to the extent permitted by the applicable law, does not give rise to any liability on GIFTD.
VISITORS’ AND USERS’ RESPONSIBILITIES
1) All Visitors and Users are fully responsible for all content they upload or publish on (or transmit via) the Site and, if applicable, for the Items they offer, sell, exchange, donate, or transfer to other Users via the Site, as well as for all Transactions undertaken by them with other Users and any disputes that result from such Transactions. Without limiting the foregoing, Users are responsible for all text, information, descriptions, photos, details, and other content they provide in Item listings, Forum postings, Private Messages, feedback, and otherwise post, publish, transmit, or share on or via the Site (collectively, "Content").
2) Visitors and Users must respect all applicable laws, rules, and regulations when using the Site. Visitors and Users must in particular refrain from (i) violating the rights of third parties; (ii) violating intellectual property rights or listing counterfeit items; (iii) listing Items that violate laws or regulations; (iv) inciting offences or crimes, discrimination, hate or violence based on race, ethnic origin or nationality; (v) communicating incorrect information or confidential information; (vi) making defamatory comments; (vii) committing actions that might place minors in danger; (viii) publishing the personal data of other individuals or breaching privacy rights; (ix) usurping the identity of someone else; or (x) uploading or otherwise inputting any Content that is unlawful, false, or inaccurate. Users must act and use the Site in good faith.
3) If any User or Visitor reports any misconduct of another User or Visitor to GIFTD, GIFTD may provide assistance to the affected party. GIFTD will also cooperate with local authorities if required. In the event that a User or a Visitor does not comply with Section 2 or otherwise violates these Terms, the User or the Visitor recognizes and accepts that he/she is solely responsible for any and all resulting direct and indirect losses of third parties or GIFTD. Consequently, the User or the Visitor recognizes and accepts that, in its capacity as a hosting provider, GIFTD will under no circumstances undertake any verification of the Content and the Items listed in the Catalog, and, to the extent permitted by applicable law, will under no circumstances be held responsible for any damages or losses suffered by Visitors or Users and/or third parties. In particular, without this list being exhaustive, GIFTD will not be held responsible for: (i) actions or omissions of Visitors or Users; (ii) the appropriateness, accuracy, exhaustiveness, and/or legality of any Content; or (iii) the safety, quality, and quantity of Items that Users sell, buy, exchange, or donate via the Site nor the conformance of an Item with the description given.
4) GIFTD is not responsible for the Content of Users. Users are responsible for their Content. GIFTD has the right, but not the obligation, to remove Content from the Site that GIFTD determines violates, or is likely to violate, applicable laws and/or these Terms and GIFTD may take action against the User, including, but not limited to, by suspending or terminating the User’s Account, as provided for in Section 2.
5) If any User or Visitor (i) identifies any Content condoning crimes against humanity, inciting racial hatred, violence and/or terrorist acts, concerning child pornography, or any other unlawful content or (ii) identifies any Content that the User or Visitor believes might violate these Terms and/or their rights and/or the rights of a third party (e.g. counterfeiting, insult, breach of privacy rights, product safety issue), the User or Visitor must immediately inform GIFTD by sending an email to the address hello@giftd.app.
If such Content is reported, GIFTD reserves the right to suspend immediately, without notice, the account of the User (including any in-progress transactions) and remove the Content, as provided for in Section 2.
6) If there is a product safety issue with an Item, Users are advised to stop using the Item.
OBLIGATIONS OF USERS
1) A User agrees to comply with the following rules when using the Site:
2) The User agrees to keep his/her Account login details and password confidential and not disclose his/her login details or password to any third parties (except for persons who the User authorises to use his/her login details and password). A User is solely responsible (to us and to others) for all activity that occurs under the User’s Account. If a User knows or suspects that any unauthorized third party knows the User’s password or has accessed the User’s account, the User must promptly notify GIFTD via hello@giftd.app.
3) The User agrees to immediately update any information on the Site that is no longer current or accurate, including information provided by the User while registering on the Site and information in the User’s Account, as well as information on the Items listed in the Catalog.
4) When using the Site, the User or Visitor represents:
CONTRIBUTION LICENSE
By posting your Contributions to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute suchContributions (including, without limitation, your image and voice) for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, such Contributions, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
This license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in yourContributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Contributions; (2) to re-categorise any Contributions to place them in more appropriate locations on the Site; and (3) to pre-screen or delete anyContributions at any time and for any reason, without notice. We have no obligation to monitor your Contributions.
MOBILE APPLICATION LICENSE
UseLicense
If you access the Marketplace Offerings via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms of Use.You shall not:
(1) except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application;
(2)make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application;
(3) violate any applicable laws, rules, or regulations in connection with your access or use of the application;
(4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark)posted by us or the licensors of the application;
(5) use the application for any revenue generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended;
(6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time;
(7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application;
(8) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or
(9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
Apple and Android Devices
The following terms apply when you use a mobile application obtained from either theAppleStore or Google Play (each an “App Distributor”) to access the MarketplaceOfferings: (1) the license granted to you for our mobile application is limited to anon-transferable license to use the application on a device that utilises theApple iOS orAndroid operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service;(2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, theAppDistributor will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and(ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the AppDistributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms of Use, and that each AppDistributor will have the right (and will be deemed to have accepted the right)to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.
SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Marketplace Offerings("Submissions") provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
SITE MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Site for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site and the Marketplace Offerings.
PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy:https://www.giftd.app/privacy-statement. By using the Site or the MarketplaceOfferings, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Site and the Marketplace Offerings are hosted in the European Union. If you access the Site or the Marketplace Offerings from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the European Union, then through your continued use of the Site, you are transferring your data to the European Union, and you agree to have your data transferred to and processed in the European Union.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
Notifications
We respect the intellectual property rights of others. If you believe that any material available on or through the Site infringes upon any copyright you own or control, please immediately notify ourDesignated Copyright Agent using the contact information provided below (a“Notification”). A copy of yourNotification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Site infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information:
(1) A physical or electronic signature of a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed;
(2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by the Notification, are presentative list of such works on the Site;
(3)identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
(5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or the law; and
(6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorised to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Counter Notification
If you believe your own copyrighted material has been removed from the Site as a result of a mistake or misidentification, you may submit a written counter notification to [us/our Designated Copyright Agent] using the contact information provided below (a “Counter Notification”). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:
(1) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
(2) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the UnitedStates, for any judicial district in which we are located;
(3) a statement that you will accept service of process from the party that filed the Notification or the party's agent;
(4) your name, address, and telephone number;
(5)a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
(6) your physical or electronic signature.
If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney's fees. Filing a false Counter Notification constitutes perjury.
Designated Copyright Agent
Hannah Kromminga
Muskauer Str.11a
10997 Berlin
Germany
hello@giftd.app
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Site.WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND THE MARKETPLACE OFFERINGS (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON,INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION,WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OFANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AND THE MARKETPLACE OFFERINGS OR DELETE
YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at anytime or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Marketplace Offerings without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Marketplace Offerings.
We cannot guarantee the Site and the Marketplace Offerings will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site or the Marketplace Offerings at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or the MarketplaceOfferings during any downtime or discontinuance of the Site or the MarketplaceOfferings. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the Marketplace Offerings or to supply any corrections, updates, or releases in connection therewith.
GOVERNING LAW
These conditions are governed by and interpreted following the laws of Germany ,and the use of the United Nations Convention of Contracts for the International Sales of Goods is expressly excluded. If your habitual residence is in the EU, and you are a consumer, you additionally possess the protection provided to you by obligatory provisions of the law in your country to residence. GIFTD GmbH and yourself both agree to submit to the non-exclusive jurisdiction of the courts of Berlin, which means that you may make a claim to defend your consumer protection rights in regards to these Conditions of Use in Germany, or in the EU country in which you reside.
DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each "Dispute" and collectively, the "Disputes")brought by either you or us (individually, a "Party" and collectively, the "Parties"), theParties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
Any dispute arising from the relationships between the Parties to this contract shall be determined by one arbitrator who will be chosen in accordance with the Arbitration and Internal Rules of the European Court of Arbitration being part of the EuropeanCentre of Arbitration having its seat in Strasbourg, and which are in force at the time the application for arbitration is filed, and of which adoption of this clause constitutes acceptance. The seat of arbitration shall be Berlin, Germany. The language of the proceedings shall be German. Applicable rules of substantive law shall be the law ofGermany.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between theParties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute tobe arbitrated on a class-action basis or to utilise class action procedures; and (c)there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorised use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction.
CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Marketplace Offerings, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
DISCLAIMER
THE SITE AND THE MARKETPLACE OFFERINGS ARE PROVIDED ON AN AS-ISAND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE ANDOUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND THE MARKETPLACE OFFERINGS AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1)ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2)PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER,RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORISED ACCESS TO OR USE OFOUR SECURE SERVERS AND/ORANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR THE MARKETPLACE OFFERINGS,(5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6)ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FORANY LOSS OR DAMAGE OFANY KIND INCURRED AS A RESULT OF THE USEOF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ATHIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE APARTY TO OR INANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. ASWITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT,CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE OR THE MARKETPLACE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL ATALL TIMES BE LIMITED TO
THE LESSER OF THE AMOUNT PAID, IF ANY, BYYOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $1,000.00 USD. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of:
(1)your Contributions;
(2) use of the Marketplace Offerings;
(3) breach of these Terms ofUse;
(4) any breach of your representations and warranties set forth in these Terms of Use;
(5) your violation of the rights of a third party, including but not limited to intellectual property rights; or
(6) any overt harmful act toward any other user of theSite or the Marketplace Offerings with whom you connected via the Site.Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Marketplace Offerings, as well as data relating to your use of the Marketplace Offerings. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Marketplace Offerings. You agree that wes hall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, ANDSIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS,AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERSAND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the ComplaintAssistance Unit of the Division of Consumer Services of the CaliforniaDepartment ofConsumer Affairs in writing at 1625 North Market Blvd., Suite N112, Sacramento,California 95834 or by telephone at (800) 952-5210 or (916)445-1254.
MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Marketplace Offerings constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of theseTerms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no jointventure, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or use of the Marketplace Offerings. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
CONTACT US
In order to resolve a complaint regarding the Site or the Marketplace Offerings or to receive further information regarding use of the Site or the Marketplace Offerings, please contact us at:
GIFTD GmbH
Muskauer Str.11a
10997 Berlin
Germany
Phone: +491636971178
hello@giftd.app