Retailer Terms & Conditions

1.1 Services

• (a) Gifted agrees to provide the Retailer's users with personalized gifting services ("Services").
• (b) The Retailer acknowledges and agrees that Gifted will not be required under any circumstances to re-provide the Services if the relevant item purchased by the user from the Retailer is returned to or re-provisioned by the Retailer.

1.2 Orders

• (a) A user may place an order with Gifted by requesting that Gifted provide the Services to the requested recipient through the Retailer's platform.
• (b) Gifted will notify the user and the Retailer within 24 hours if it is unable to accept an order.

• (a) Gifted agrees to perform the Services: (i) in accordance with the provided information; (ii) efficiently with due care, skill and diligence; and (iii) in accordance with all laws relating to the performance of the Services.
• (b) Gifted will provide the Retailer with information relating to the requested recipient where necessary for the Retailer to fulfill any order.
• (c) Gifted must maintain, at its cost, any licenses, accreditations, certifications or registrations required by law to perform the Services.

3.1 General

(a) The Retailer must:

• (i) ensure that Gifted can receive all information and data reasonably necessary, including without limitation the provided information and the delivery information, through the widget as required by Gifted to allow it to complete the Services in a timely manner;
• (ii) cooperate with Gifted in all matters relating to the Services;
• (iii) comply with all reasonable directions and instructions given by Gifted relating to the widget;
• (iv) ensure that Gifted's terms are incorporated into the Retailer's platform such that each user has a reasonable opportunity to read, understand and agree to Gifted's terms;
• (v) provide Gifted with true and relevant information regarding the Retailer, its delivery agent and its business;
• (vi) comply with all applicable laws; and
• (vii) comply with all of Gifted's instructions and directions relating to the Services.

3.2 Accuracy of Information

The Retailer acknowledges that Gifted has relied on information that the Retailer has provided in agreeing to and providing the Services.

• (a) Use of and access to the Service may be subject to a subscription fee ("Subscription Fee"), which is payable on a recurring basis.
• (b) Use of and access to the specific elements of the Service may be subject to service fees ("Service Fee"), payable as described.
• (c) Fees are not refundable or partially refundable, except as required by law.
• (d) All payments received by Gifted are processed through third party secure transaction service providers.

5.1 Ownership

• (a) The intellectual property rights in the Services and the widget are, and shall remain the property of Gifted, and we reserve the right to grant a license to use the Services and the widget to any other party or parties.
• (b) The Retailer must do all things that Gifted reasonably requires to perfect its right, title and interest in and to the intellectual property rights in the Services and/or the widget.
• (c) The Retailer shall use reasonable endeavors to prevent any infringement of Gifted's intellectual property rights in the Services and/or the widget and shall promptly report to Gifted any such infringement that comes to its attention.

5.2 License

Gifted grants the Retailer a revocable, non-exclusive, non-transferable and royalty-free right to use the widget to the extent necessary to obtain the full benefit of the Services.

5.3 White Label

If a 'White Label' version of the widget is being supplied, Gifted agrees to license to the Retailer a White Label version of the widget for use in accordance with these terms.

5.4 Provided Information

As between the parties, all intellectual property rights in the provided information remain the property of the user, and nothing in this document shall be construed as giving either party any rights to such intellectual property rights.

5.5 Retailer's Warranty and Indemnity

• (a) The Retailer warrants that: (i) it holds any necessary license of or consents relating to all intellectual property rights in the provided information; and (ii) in utilizing any provided information, Gifted will not infringe, violate or otherwise conflict with any intellectual property rights owned by a third party.
• (b) The Retailer indemnifies Gifted from and against any liability arising out of any claim by a third party that the provided information violates or infringes any intellectual property rights owned by a third party.

5.6 Gifted's Warranty and Indemnity

• (a) Gifted warrants that: (i) it owns, or holds any necessary license of, all intellectual property rights in the Services and the widget; and (ii) in utilizing the Services and the widget, the Retailer will not infringe, violate or otherwise conflict with any intellectual property rights owned by a third party.
• (b) Gifted indemnifies the Retailer from and against any liability arising out of any claim by a third party that it and the Services or the widget violates or infringes any intellectual property rights owned by a third party.

5.7 Restrictions on Use

The Retailer acknowledges and agrees that it will:

• (a) comply with all applicable laws, regulations and codes of conduct;
• (b) promptly report to Gifted any errors, defects or malfunctions in relation to the Services or the widget;
• (c) not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services or the widget;
• (d) not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or the widget or create a derivative work from the Services or the widget by any means;
• (e) not remove any identification or notices of any proprietary or copyright restrictions from the Services or the widget or any support material, unless Gifted has agreed to provide the Retailer with a White Label version of the widget, whereby the branding of the widget only may be replaced with the branding of the Retailer; and
• (f) not purport to grant to a third party any right to access or use our Services or the widget except as Gifted permits.

6.1 Termination for Cause

Either party may at any time terminate this document with immediate effect if:

• (a) the other party commits a material breach of this document and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
• (b) the other party repeatedly breaches any term of this document in such a manner as to reasonably justify the opinion that their conduct is inconsistent with them having the intention or ability to give effect to this document; or
• (c) the other party suffers an insolvency event.

6.2 Obligations on Termination or Expiry

On termination or expiry:

• (a) Gifted will cease to provide the Services to the Retailer;
• (b) the Retailer will pay or otherwise authorize payment of all amounts owing to Gifted; and
• (c) each party will, on request of the other party, return to the other party all confidential information.

6.3 Survival

• (a) Certain clauses survive the expiry or earlier termination of this document.
• (b) Termination of this document will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.

• (a) Each party agrees to, and shall ensure each of their officers, employees and contractors: (i) hold in strict confidence all confidential information of the other party; (ii) use the confidential information solely to perform or to exercise their rights under this document; (iii) not transfer, display, convey or otherwise disclose or make available all or any part of such confidential information to any third party; and (iv) use their best endeavors, including keeping such information in a safe place and implementing adequate security measures, to ensure that all confidential information is secure from unauthorized use, disclosure or copying by third parties.
• (b) The obligations in this clause do not apply: (i) to the extent necessary to enable disclosure required by law; (ii) to any disclosure agreed in writing between the parties; or (iii) where the confidential information has entered the public domain other than as a result of a breach by the Retailer of this document.

8.1 Limitation of Liability

• (a) This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their employees, agents and subcontractors) to each other in respect of: (i) any breach of this document; (ii) any use made of the Services; and (iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this document.
• (b) As far as the law permits and unless otherwise specified in this document: (i) all liability to a party for any injury, loss damage, cost or expense relating to or arising from this document, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded; (ii) the Retailer shall be solely responsible, as against Gifted, for any opinions, recommendations, or other conclusions made or actions taken by the Retailer or any other third party based (wholly or in part) on the results obtained from its use of the Services.

8.2 Maximum Liability

Subject to applicable law, the total liability of each party arising under or in connection with this document will be limited in the aggregate to the total fees payable in the previous 12 month period.

8.3 Consequential Loss

Neither party, nor their members, managers, officers, employees or agents, shall be liable to the other party for any loss of use, lost or inaccurate data or data corruption, lost profits, failure of security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise.

• (a) Gifted agrees to comply with its Privacy Policy and all applicable privacy laws in performing the Services.
• (b) The Retailer agrees to comply with all applicable privacy laws in relation to any information that it collects from the user in connection with the Services.
• (c) The Retailer agrees and warrants that it has all necessary and appropriate consents and notices in place to enable lawful transfer to Gifted of any personal data or information, including without limitation in connection with the provided information, for the duration and purposes of this document so that Gifted may lawfully use, process and transfer the personal data in accordance with this document.
• (d) Gifted shall notify the Retailer immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Retailer.
• (e) Except where consent has otherwise been received by the user or requested recipient, each party agrees to use the provided information and any personal information regarding the requested recipient strictly for the purposes of fulfilling their obligations under this document.

• (a) Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to this document if such delay is due to a force majeure event.
• (b) If a force majeure event continues for a period of 60 consecutive days, then either party may terminate the Services affected by the force majeure event by providing written notice to the other party.

• (a) Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document ("Dispute"), unless the party starting the proceedings has complied with this clause.
• (b) A party claiming that a dispute has arisen must notify the other party in writing, specifying the nature of the dispute ("Dispute Notice").
• (c) Following the dispute notice being given, a representative of both parties with authority to negotiate and settle the dispute must endeavor in good faith to resolve the dispute within 14 days.
• (d) If the dispute is not resolved within 14 days of the dispute notice being given, the parties must endeavor in good faith to resolve the dispute by mediation.
• (e) Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.

• 12.1 Amendments: This document may only be amended by written agreement between all parties.
• 12.2 Entire Agreement: This document supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.
• 12.3 No Waiver: The failure of either party at any time to enforce any of the terms or provisions of this document does not constitute a waiver of any such right.
• 12.4 Relationship: Gifted is an independent contractor of the Retailer and this document does not create a relationship of employment, trust, agency, partnership, power of attorney, or of joint venture between Gifted and the Retailer.
• 12.5 Governing Law: This document is governed by applicable laws and each party submits to the jurisdiction of competent courts.
• 12.6 Severability: A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses continue in force.
• 12.7 Assignment: Each party may only assign or subcontract its obligations under this document with the prior written consent of the other party.
• 12.8 Costs: Each party bears its own costs in relation to the preparation and signing of this document.

• (a) A notice, consent or communication under this document must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as set out in this document.
• (b) A notice, consent or communication is given and received: (i) if it is hand delivered, on the day it is given; (ii) if it is sent by post, three business days after posting; and (iii) if it is sent by email, that day, if the time of departure from the sender's mail server is before 5:00pm on a business day, or the next business day in any other case, unless the sender receives an automated message that the email has not been delivered within two hours.

14.1 Defined Terms

In this document:

• (a) Business Day means a day that is not a Saturday, Sunday or public holiday.
• (b) Confidential Information means any information relating to the business and affairs of a party, relating to the users, clients, employees, sub-suppliers or other persons doing business with a party, which is by its nature confidential, and includes all trade secrets, know-how, marketing, financial and user information.
• (c) Delivery Agent means the delivery agent engaged by the Retailer to deliver the relevant item to requested recipient.
• (d) Delivery Information means all information relevant to the delivery of the item purchased by the user which relates to the Services.
• (e) Gifted's Terms means Gifted's terms and conditions relating to the Services located at https://www.withgifted.com/end-user-terms.
• (f) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, including copyrights, patents, trademarks, designs, confidential information, trade secrets, know-how, data and databases.
• (g) Order means the order submitted by the user through the Retailer's platform for the provision of the Services.
• (h) Provided Information means information and associated content relating to the user and the requested recipient as provided by the user through the widget.
• (i) Requested Recipient means the recipient of Services as nominated by the user.
• (j) Retailer's Platform means the website, app or other platform that the Retailer uses in connection with its business.
• (k) Services means the personalized gifting services provided by Gifted.
• (l) User means the end user using the Services through the Retailer's platform.
• (m) White Label means a set of functionality of the widget that is produced and provided by Gifted, which is rebranded to appear as though it originates from or is provided by another provider (such as the Retailer).
• (n) Widget means the widget integrated into the Retailer's platform and used by Gifted to provide the Services.