Gratafy (“Gratafy”, “us”, “we” or “our”) is an experiential marketing platform accessible at www.gratafy.com and through Gratafy’s mobile applications and the Gratafy widgets integrated into third party websites (together, the “Gratafy Platform”) that connects Gratafy users (“users”, “you” or “your”) with merchants (“Merchants”) to enable you to give gifts, products and services offered by Merchants (“Gifts”) and send those Gifts to your friends, co-workers, clients, family, and loved-ones.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND gratafy WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Special Terms for Merchants
Eligibility and Age Restrictions
By registering a Gratafy Account and accepting this Agreement, you confirm that you are either (a) at least 18 years of age; or (b) between 13 and 17 years of age and using the Gratafy Platform with the permission and consent of your parents or legal guardian. You are not allowed to register a Gratafy Account and you do not have the right to access or use the Gratafy Platform if you do not meet either of these criteria. We reserve the right to, at our sole discretion, refuse to register a Gratafy Account or to terminate an existing Gratafy Account at any time and for any reason whatsoever, in particular, but without limitation, if these criteria are not met.
Please note that alcoholic beverages and related services may be sold and delivered only to persons who are at least 21 years of age. By placing an order for any Gift that is an alcoholic beverage, you represent to Gratafy and to the Merchant: (a) that you are purchasing the Gift for personal use and not for resale; (b) that you are at least 21 years old; (c) that any person to whom the Gift will be delivered or served is at least 21 years old; and (d) that the person receiving the Gift will provide valid identification proving that he or she is at least twenty-one 21 years of age.
If you are under the age of 21 and misrepresent your age or the age of the person to whom a Gift comprising an alcoholic beverage and associated services are to be provided, you may be subject to prosecution for violating state and/or federal law.
If Gratafy makes any substantial changes, we may also notify you by posting notice of the change on the Gratafy Platform and/or by sending you an e-mail to the e-mail address that is registered with your account. These changes will not apply to Gifts purchased prior to the effective date of such changes. Any changes will be effective immediately for new users of the Gratafy Platform and Gifts purchased after the effective date.
Registration and Use
In order to use the Gratafy Platform, you must complete all required information elements on the registration page of the Gratafy Platform, including, in some instances, providing a valid credit card or other payment method. You agree to pay for all applicable fees, purchases and other obligations arising from your use of the Gratafy Platform. You must provide current, complete and accurate information and maintain it as current and accurate. We may require you to provide additional information as a condition of continued use of the Gratafy Platform or to purchase Gifts. We facilitate processing the payment for purchased Gifts, but we reserve the right to delay or cancel processing of suspicious transactions or transactions which may involve fraud, misconduct or violations of law.
You can also register through your account with Facebook. If you choose the Facebook account option, we’ll create your account by extracting from your Facebook account certain personal information such as your name and e-mail address and other information as your privacy settings on the Facebook account permit us to access.
References to “content” herein refer to all aspects of the Gratafy Platform, including but not limited to all products and services (including Gifts) offered via the Gratafy Platform, as well as all text, images, photos, video, audio, source code, articles, design, and all other forms of data or communication created, posted, displayed, or transmitted by or onto the Gratafy Platform.
You acknowledge that, although we strive to provide a secure environment, there may be interruptions in service or other events that are beyond our control. Gratafy shall not be responsible for any data lost while transmitting information over the internet. While we strive to make the Gratafy Platform accessible 24 hours per day, 7 days per week, the Gratafy Platform may be unavailable from time to time for any reason, including without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside our control, access to the Gratafy Platform may be interrupted, suspended or terminated from time to time.
Gratafy shall have the right at any time to change or discontinue any aspect or feature of the Gratafy Platform, including, but not limited to, content, hours of availability, equipment needed for access or use, and Gifts available. Further, Gratafy may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
Products are Sold by the Merchants
The Merchant, not Gratafy, is the seller of the Gifts and related products and services and is solely responsible for providing the Gifts you purchased. However, we encourage you to notify us of any failure of a Merchant to redeem a Gift, to give us the opportunity to address such case, as we deem appropriate and at our sole discretion. Your only recourse with respect to a Merchant’s failure to redeem a Gift shall be against the Merchant from which you purchased such Gift. Unless otherwise prohibited by applicable law, you agree to make any claims with respect to a Gift purchased on the Gratafy Platform within 45 days after purchase of such Gift. You are responsible for your own actions or omissions in utilizing the Gifts or other services or products provided by Merchants. Gratafy makes no representations or warranties, express or implied, as to the quality, safety, usability, or other aspect of the Gifts or other services or products provided by Merchants. Gratafy is not liable for any costs, harm or damages that occur as a result of, either directly or indirectly, the Gifts or other services or products provided by Merchants.
Purchasing Gifts and Additional Terms and Conditions
All Gifts offered on the Gratafy Platform may be subject to additional terms and conditions of the Merchant. Any such terms and conditions are set forth on the Gratafy Platform. By making a purchase, you acknowledge and agree to such terms and conditions: By selecting a Gift to purchase, you make an offer to purchase the Gift you have selected from the offering Merchant on the terms and conditions presented to you at the time of purchase.
All conditions associated with the lawful sale and service of Gifts by the Merchant are the responsibility of the Merchant, and may be subject to additional regulatory conditions and restrictions including but not limited to age verification requirements and restrictions associated with the delivery of alcoholic beverage products to certain consumers.
From time to time, Gratafy may offer special promotions, contests and/or sweepstakes to provide users with incentives to purchase Gifts using the Gratafy Platform. We might also tailor particular promotions for you based on the Gifts that you’ve purchased previously, Gifts you have received from other Gratafy Account Holders or related to the Merchants from whom you have purchased or received Gifts. The applicable rules for such special promotional activities will be posted on the Gratafy website, or communicated to you in advance of the promotional activity.
Gifts Are Nontransferable
When you purchase a Gift, only you or the named recipient has the right to receive the Gift. You cannot transfer the right to receive the Gift to anyone else. The right to receive a Gift comprising an alcoholic beverage is subject to the Merchant’s obligation to comply with all applicable laws and regulations associated with the sale and service of alcoholic beverages.
Gifts are purchasable and billed on a one-time basis. You hereby authorize us to charge, on behalf of the Merchant, the credit card or other payment method you have on file in connection with purchases of Gifts.
No Refunds or Exchanges
Equipment and Mobile Applications
You shall be responsible for obtaining and maintaining your Devices and all telephone and other equipment needed for access to and use of the Gratafy Platform and all charges related thereto. Gratafy shall not be liable for any damage to your Devices or other equipment resulting from the use of the Gratafy Platform.
Gratafy’s mobile applications allow users to access many features of the Gratafy Platform through a mobile device. If you use the applications you are responsible for any fees that your phone service provider may charge for connection, subscription, roaming, SMS, data, etc. Gratafy is not affiliated with any phone service providers.
Privacy, Security and Passwords
We have several tools that allow you to record and store information. You are responsible for taking all reasonable steps to ensure that no unauthorized person has access to your user name, passwords or account. It is your sole responsibility to (1) control the dissemination and use of your user name, Gift redemption codes, and passwords; (2) authorize, monitor, and control access to and use of your Gratafy Account, user name, and password; (3) promptly inform Gratafy of any need to deactivate a user name or password. You are fully responsible for all activities that occur under your Gratafy Account, whether or not you know about them.
Use of the Gratafy Platform and Restrictions
Although we welcome and encourage user interaction on the Gratafy Platform, we require that all users restrict any and all activity on the Gratafy Platform to that which involves lawful purposes only. In your use of the Gratafy Platform and services you agree not to post or transmit through the Gratafy Platform any material which violates or infringes in any way upon the rights of others, or any material which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without Gratafy’s express prior, written approval, contains advertising or any solicitation with respect to products or services. In addition, in your use of the Gratafy Platform and its service you agree that you will not:
Each user agrees that it shall use the content of the Gratafy Platform, including without limitation (a) the identity of Merchants, (b) information regarding Gifts (including without limitation, prices and discounts) and (c) the identity of Gratafy employees, contractors or other agents, solely in connection with making its decision to purchase Gifts. Gratafy is not obligated to post any material that you submit via the Gratafy Platform. Gratafy has the right to remove any material for any reason (or no reason) including, without limitation, material that Gratafy believes to be in violation of the provisions hereof or otherwise objectionable.
Copyrights and Trademarks Policy
Everything located on or in the Gratafy Platform is the exclusive property of Gratafy or is used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THE GRATAFY PLATFORM WITHOUT THE EXPRESS WRITTEN PERMISSION OF GRATAFY IS STRICTLY PROHIBITED. Any violation hereof may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
The Gratafy Platform contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics and sounds. The Gratafy Platform is protected by copyright under the United States and international copyright laws. Gratafy owns copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content created by Gratafy. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. You may download, print, or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material is permitted without the express permission of Gratafy or the copyright owner. If copying, redistribution or publication of copyrighted material is permitted, you shall make no changes in or deletion of author attribution, trademark legend or copyright notice.
You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Material that is located within or on the Gratafy Platform otherwise owned or operated in conjunction with Gratafy shall not be deemed to be in the public domain but rather the exclusive property of Gratafy, unless such site is under license from the applicable licensor, in which case such license is for the exclusive benefit and use of Gratafy unless otherwise stated.
You shall not upload, post or otherwise make available (or submit to Gratafy for uploading, posting or to be made available) on the Gratafy Platform any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By posting content to the Gratafy Platform, you hereby represent and warrant that you have the right to post that content and to grant the foregoing rights to Gratafy (and its affiliates and sublicensees).
You take full and sole responsibility for all content that you post on the Gratafy Platform and the consequences of posting that content. You are responsible for obtaining all necessary rights to upload, post and distribute all content, including obtaining permission from any person shown in a photo that you upload or that is identified in any writing that you post.
Disclaimer of Warranty
YOU EXPRESSLY AGREE THAT USE OF THE GRATAFY PLATFORM IS AT YOUR SOLE RISK. NEITHER GRATAFY, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, CONTRACTORS, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT USE OF THE GRATAFY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE GRATAFY PLATFORM, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCT (INCLUDING PRODUCTS) PROVIDED THROUGH THE GRATAFY PLATFORM.
THE GRATAFY PLATFORM IS MADE ACCESSIBLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE FOLLOWING DISCLAIMERS AND LIMITATION OF LIABILITY APPLY TO ANY DAMAGES OR INJURY CAUSED BY USE OF THIS GRATAFY PLATFORM AND THE SERVICES THEREON AND ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD CAUSED BY THE GRATAFY PLATFORM OR THE SERVICES THEREON, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT GRATAFY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER. THE FOLLOWING DISCLAIMERS AND LIMITATIONS OF LIABILITY APPLY IN THE EVENT A REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
THE MERCHANTS OFFERING PRODUCTS THROUGH THE GRATAFY PLATFORM ARE INDEPENDENT CONTRACTORS AND NOT AFFILIATES, AGENTS OR EMPLOYEES OF GRATAFY. GRATAFY, ITS AFFILIATES AND EMPLOYEES DISCLAIM LIABILITY FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY MERCHANTS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. GRATAFY HAS NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY MERCHANT CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE OR OTHER CAUSES BEYOND GRATAFY’S DIRECT CONTROL.
IN NO EVENT SHALL GRATAFY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE GRATAFY PLATFORM. GRATAFY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY USER DURING THE TWO MONTHS PRECEDING THE BRINGING OF ANY CLAIM.
IN ADDITION TO THE TERMS SET FORTH ABOVE, NEITHER GRATAFY, NOR ITS AFFILIATES, LICENSORS OR CONTENT PROVIDERS (OTHER THAN MERCHANTS) SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR INAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE GRATAFY PLATFORM OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO YOU, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
Release and Indemnification
The Merchants are the sellers of the Gifts which you are purchasing. Gratafy does not control any Merchant, and is not responsible for any costs, harm or damages that occur as a result of, either directly or indirectly, Gifts offered by the Merchants.
You release Gratafy and its affiliates, and their respective directors, officers, employees, contractors and agents from any claim or liability arising from or related to (a) any Gifts or other services or products provided by the Merchants and (b) any acts or omissions by users, including users’ failure to comply with applicable law and/or Merchants’ failure to provide Gifts as described in good faith by Gratafy (collectively, (a) and (b) are referred to as the “Released Products Claims”). You also agree to defend, indemnify and hold harmless Gratafy and its affiliates, and their respective directors, officers, employees, contractors and agents from and against all claims and liability, including attorneys’ fees, arising out of or related to the Released Products Claims.
Notwithstanding anything herein to the contrary, Gratafy shall have the right, exercisable in its absolute and sole discretion, immediately to terminate this Agreement and your Gratafy Account and block your access to the Gratafy Platform at any time and for any reason. You may immediately terminate this Agreement at any time by discontinuing use of the Gratafy Platform and terminating your Gratafy Account, where applicable.
Third Party Content and Links
The Gratafy Platform may contain content that is submitted by third parties or other users. You acknowledge that by using the Gratafy Platform, you may be exposed to content that you find objectionable, or which is inaccurate, misleading or incomplete. We are not responsible for the accuracy, completeness or usefulness of any third-party content, nor do we make any endorsement claims for the Gratafy Platform’s third party content. Gratafy has no editorial control over such content, and any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including content providers, or any other users are those of the respective author(s) or distributor(s) and not of Gratafy. You therefore use the Gratafy Platform and the content at your own risk.
The Gratafy Platform, or third party users and members, may provide links to other Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials contained in or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on or through any third party site or resource. Gratafy reserves the right to disable any link or remove any third party content at any time in its sole discretion.
Agreement to Arbitrate
You and Gratafy agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Gratafy Platform , or the purchase or sale of any products or services (including Gifts) (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Gratafy with written notice of your desire to do so by email at email@example.com or regular mail at 506 Second Ave, Seattle, WA 98104 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Gratafy with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Gratafy with an Arbitration Opt-out Notice, will be the state and federal courts located in King County in the State of Washington and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Gratafy with an Arbitration Opt-out Notice, you acknowledge and agree that you and Gratafy are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Gratafy otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Gratafy otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Gratafy submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Gratafy will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Gratafy will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).