GIFTEDD SOLUTIONS INC.
Terms and Conditions
[Recently updated: March, 2023]
These Merchant Terms of Service ("Merchant Terms") regulate the relationship between Gifted Solutions Inc. ("Gifted", "we," "us", or "our") and any individual or entity ("Merchant" or "you") using the Platform for offering their products and services the Platform as Services.
The Merchant Terms are intended to supplement the General Terms and Conditions of Gifted ("General Terms"). All Merchants are subject to the General Terms without derogation from any of their provisions. However, where the Merchant Terms differ or conflict with the General Terms, these Merchant Terms shall govern and take precedence in regard to Merchants' specific use of the Platform and Services for the purchase of gifts.
Merchants, as any other User, are also obligated to comply with the Privacy Policy and any other appendices or supplemental agreements that collectively constitute the Agreement between Gifted and the User. This Agreement governs the Merchant's use of the Gifted Platform and Services.
By using the Platform as a Merchant, you acknowledge that you have read, understood, and agree to be bound by these Merchant Terms, as well as the other components of the Agreement.
Any term not defined herein shall have the meaning assigned to it in the General Terms, unless the context clearly indicates otherwise.
Gifted reserves the right to change these Merchant Terms at any time as further detailed in the General Terms. The Merchant’s continued use of the Platform and Services after such revisions are posted will signify its agreement to these revised terms.
PLEASE NOTE THAT THE GENERAL TERMS CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THE GENERAL TERMS AS WELL AS THIS MERCHANT TERMS, YOU AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.
1. MERCHANT’S REGISTRATION AND ACCOUNT
1.1. In order to use the Platform and Services, each Merchant will be required to register and open a Merchant account as further detailed in the General Terms (“Merchant Account”).
1.2. Gifted reserves the unilateral right, without obligation, to compel any Merchant to undergo a verification process intended to authenticate their identity and evaluate their appropriateness for the Platform's services. As part of this process, and at our sole discretion, we may necessitate the Merchant to furnish us with specific documentation and information. We also reserve the right, absent the obligation, to terminate the membership of any Merchant who fails to comply with the Platform's stipulations or does not successfully complete the verification, in accordance with prevailing law and at our sole discretion.
1.3. The Merchant is fully responsible for appropriately allocating user authorizations for the Merchant Account and its Authorized Users and should exercise discretion when granting such authorizations. Any Gifting offer published through the use of the Merchant Account or any of its Authorized Users shall be deemed as executed by the Merchant, and Gifted shall
not bear any responsibility (beyond its general security measures) for verification of any User access or Merchant Account’s use.
1.4. At its sole discretion, Gifted reserves the right to deny access to or usage of the Platform to any individual or entity and may modify its eligibility criteria at any given time.
2. GIFT OFFERS
2.1. Upon registration, the Merchant is granted the capability to create or upload Gifting offers via the Dashboard. Gifted does not exercise control over, nor assumes responsibility for, any Gift content or description, regardless of any potential monitoring of such Gift offers.
2.2. Every Gift offer must conform to the following terms and guidelines: 2.2.1. The offer should contain accurate, current, and comprehensive information, ensuring no misleading or ambiguous descriptions are included;
2.2.2. The offer must not violate any existing agreements the Merchant has with any party;
2.2.3. All content, encompassing text, photos, or videos used as part of the Gift offer, must comply with our General Terms, which includes our Anti-Discrimination and Hate Speech Policy;
2.2.4. The offer should specify the Merchant's name, contact details for inquiries, a detailed description of the offered goods or services, and any additional specific terms applicable to the Gift;
2.2.5. The offer must provide details on the final price. Unless explicitly stated otherwise within the Gift offer, any quoted price shall be construed as the conclusive price, incorporating all forms of taxes (inclusive but not limited to Value Added Tax or equivalent and excluding sales tax which shall be calculated and collected by Gifted), customs, duties, fees, or any other charges levied or enforced by any governing authority.
2.2.6. The offer must contain all pertinent information required for other Users to gain a comprehensive understanding of the Gift offer as it will be delivered by the Merchant.
2.3. In case of any physical Gifts: 2.3.1. The displayed final price must incorporate any packaging and shipping costs;
2.3.2. The Gift offer must disclose all relevant details, including actual size (measurements), material, and place of manufacturing, among others;
2.3.3. The offer should clearly outline the warranty terms for the offered goods as required by applicable law;
2.3.4. Expected delivery timelines should be specified, along with information about any potential delays or limitations due to regional or international restrictions;
2.3.5. Any restrictions or exclusions relating to the Gift, such as age restrictions, geographical limitations, or product usage conditions, must be clearly communicated.
2.4. Gifted retains complete authority over the presentation of any Gift offer. This provision is void where prohibited by law and this right is revoked in such jurisdictions. 2.5. Upon approval and publication of a Gift offer on the Platform, and without prejudice to any applicable law, the Merchant is obliged to honour all terms and conditions of the offer, in accordance with all provisions of the Agreement and any other relevant policies set forth by our platform.
2.6. The Merchant is expected to outline clear cancellation and refund policies for every Gift offer. The Merchant bears sole responsibility for ensuring these policies comply with any relevant legislation. Gifted neither supervises nor authenticates the Gift offers and their respective terms. Furthermore, any involvement by Gifted in such supervision or authentication does not confer upon it any responsibility or liability in relation to these offers or their terms. Nonetheless, should any physical Gift be received by the Recipient in a broken or damaged state, Gifted reserves the right to compensate the Recipient. In such cases, the cost of the Gift will be deducted from the Merchant's balance, with Gifted retaining its fee.
3. FEES, PAYMENTS, REFUNDS AND DISPUTES
3.1. Upon the redemption of a Gift offer, Gifted will deduct a service fee of 20% for physical gifts or 8% for gift cards, and the remaining balance will be credited to the Merchant's account.
3.2. The Merchant will be responsible for payment of any applicable use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Gifted’s income and sales tax which shall be calculated and collected by Gifted), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Any such taxes imposed on payments to Gifted will be the Merchant’s sole responsibility, and the Merchant will, upon Gifted’s request, provide Gifted with official receipts issued by the appropriate taxing authorities, or such other evidence as Gifted may reasonably request, to establish that such taxes have been paid. Gifted reserves the right to deduct from Merchant’s balance any such taxes imposed on Gifted.
3.3. We may offer Merchants with a free trial or promotion periods for using the Platform without paying (deducting) any or partial fee as shall be determined by us in our sole discretion ("Free Trial"). The Free Trial shall start and apply for defined and limited periods or volumes, all as determined solely by us and as published in such Free Trial offer. When you sign up for a Free Trial, you agree that we may automatically begin deducting our full fee for the Platform services on the first day following the end of the Free Trial on a recurring monthly periodic basis. We will notify you via your email address that your Free Trial period is about to expire before the end of the Free Trial. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE SUBSCRIPTION BEFORE THE END OF THE FREE TRIAL.
3.4. Merchant acknowledges that Gifted might be required to file any report and provide any required information about the Merchant’s activity in the Platform to any relevant authority, including but not limited to the Internal Revenue Service or any other tax authority, in accordance with the provisions of the law, and releases Gifted from the outcomes and consequences of any such report.
3.5. Without derogating from Merchants sole responsibility for the fulfilment and delivery of any redeemed Gift offer, the Merchant agrees and accepts Gifted discretion concerning any Users’ cancellation and refund requests or complaints and undertake to honour any decision made by Gifted where a cancelation and refund request was accepted, meaning that the Merchant entitlement for payment may be reduced.
4. RESTRICTED CONTENT AND USE
4.1. The Merchant is strictly prohibited from offering or promoting any Gifts that involve or relate to the following content or activities:
4.1.1. Any Gifts that facilitate, promote, or encourage illegal orunlawful activities, including but not limited to the sale of illegal substances, counterfeit goods, fraudulent services, or any activities that violate applicable laws and regulations;
4.1.2 Gifts that infringe any legal trade restriction, including but not limited to OFAC and similar applicable laws;
4.1.3.Gifts containing offensive,defamatory, discriminatory, or harmful content that promotes violence, hatred,discrimination, or any form of harassment towards individuals or groups basedon race, ethnicity, religion, gender, sexual orientation, disability, or anyother protected characteristic;
4.1.4.Gifts that infringe upon the intellectual property rights of third parties, including trademarks,copyrights, patents, or any other proprietary rights;
4.1.5.Gifts that contain adult-oriented or explicit content, including pornography, nudity, sexually explicit material, orany content that is deemed inappropriate for a general audience; and
4.1.6.Gifts associated with any form of gambling, online betting, or games of chance that require payment and offer potential monetary rewards.
4.1.7.Gifts that employ misleading or deceptive practices, such as false advertising, misleading pricing, or any form of fraudulent representation.
4.1.8.Gifts related to the sale,promotion, or distribution of harmful substances, including drugs, tobacco products, alcohol, or any other controlled substances.
4.2. Itis Merchants sole responsibility to ensure that all Gifts offered or promoted on the Platform comply with applicable laws, regulations, and industry standards, including consumer protection laws, data protection laws, anti-moneylaundering regulations, and any other relevant legal requirements.
4.3. Gifted reserves the right to monitor and enforce any and all compliance restrictions towards the Merchant. In the event of a violation, Gifted may take appropriate actions, including but not limited to removing or suspending the Merchant's access to the platform, suspend the Merchant Account, terminating the Merchant Agreement, or reporting the violation to relevant authorities.
4.4. Merchants shall indemnify and hold Gifted harmless against any claims, damages,liabilities, costs, or expenses arising out of or related to the Merchant's violation of these restrictions or any applicable laws or regulations.
5. PROMOTIONS, ADVERTISEMENTS AND REVIEWS
5.1 Gifted may, at its sole discretion, provide the Merchant with promotion and advertisement tools to promote its Gift offers (“promotions”). Such promotions may be displayed in one or more locations in the Platform, such as recommendations to the User or default search results, based upon varying criteria such as quality, price, number of purchasers, likelihood of views or sales, etc. Gifted is not responsible for the outcomes of any such promotions, and does not undertake to conduct any such promotion or present any Gift offer through any such promotion.
5.1 Further, Users may have the ability to leave public reviews reflecting their experiences with the Gift offers. These reviews represent the individual perspectives of Users and do not reflect the viewpoints of Gifted or its representatives. Reviews are submitted directly by users and are not subjected to regular verification by us. Reviews may be affixed to any Merchant profile or Gift offer, or anywhere else on the Platform, alongside other pertinent information. It is strictly forbidden to manipulate the review system in any manner, such as by soliciting a third party to write a positive or negative review about another Merchant.
5.2 If you believe that a review related to you is unwarranted or breaches our Agreement and guidelines, we encourage you to reach out to our support team. Each case will be evaluated based on its individual merits.
6. REPRESENTATION AND WARRANTIES
6.1 Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
6.2 Merchant Representations: the Merchant represents and warrants (i) that it has the right to disclose and provide to Gifted any data provided pursuant to this Agreement, (ii) that no materials of any kind submitted to the Platform by the Merchant will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material; and (iii) that Merchant’s activities under this Agreement will comply with all applicable laws, rules and regulations. The Merchant will be solely responsible for ensuring that its policies and its use of the Service comply with applicable laws regarding the same.
6.3 The Merchant acknowledges and agrees that it shall be solely responsible and liable for the Gifts, their content, delivery, refunds, and any and all aspects of the creation and granting the Buyers the Gifts, including their accuracy, fulfilment, and any customer support or dispute resolution related to the Gifts. Gifted shall have no responsibility or liability for any issues arising from the Gifts, their delivery, or refunds, and the Merchant agrees to indemnify and hold Gifted harmless from any claims, damages, liabilities, costs, or expenses related thereto. By utilizing the Gifted Platform, the Merchant acknowledges and accepts that Gifted's role is strictly limited to providing the platform for facilitating transactions and disclaims any responsibility or liability for the Gifts, their delivery, or refunds.
7. INDEPENDENT RELATIONSHIP
7.1 Merchant acknowledges and agrees that he acts in the Platform as an independent business unrelated to Gifted business, and is not an employee, agent, or partner of Gifted for any reason. In relation to any Gift offer or services you provide to users, the Merchant acts purely on its own behalf and for its own benefit. Each Gift offer posted is a proposal the Merchant extends independently to other Gifted Users, as part of its direct and exclusive relationship with these Users.
7.2 The Merchant undertakes not to give false impressions or mislead others into thinking there are endorsed by, acting on behalf of, or in collaboration with Gifted.
7.3 We strongly encourage all Merchants to use Gifted responsibly and exercise caution when entering into any transaction with any user.
7.4 Notwithstanding the above, we may (but are not obliged to) monitor, control, and regulate interactions between Merchants and other Users on Gifted, including any dispute. For instance, we may review, approve, or remove any content in any Gift offer that does not comply with the Agreement. We take such actions only as part of our Services – managing the Platform for the independent use of the Users.
8. BUYER SPECIFIC REPRESENTATION AND WARRANTIES
8.1 Without derogating from the Merchant’s representations and warranties under the General Terms, the Merchant specifically represents and warrants (i) that no Gift offer of any kind submitted to the Platform by the Merchant will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libellous, defamatory or otherwise unlawful material; and (ii) that Merchant’s activities under this Agreement, including any Gift offer upon its terms and fulfilment, will comply with all applicable laws, rules and regulations. The Merchant will be solely responsible for ensuring that its policies and its use of the Service comply with applicable laws regarding the same.
8.2 The Merchant acknowledges and agrees that the Merchant is solely responsible and liable for the redemption of any Gift Offer published by him, including without limitation their content, delivery, refunds, warranty and delivery terms, any customer support or dispute resolution related to the Gifts and any and all aspects of the Gift. Gifted shall have no responsibility or liability for any issues arising from the redemption of Gifts, and the Merchant agrees any claim related to the Gift shall be directed to the Merchant or relevant third-party. By utilizing the Gifted Platform, the Merchant acknowledges and accepts that Gifted's role is strictly limited to providing the platform for facilitating transactions and disclaims any responsibility or liability for the redemption of the Gifts through any third-party or Merchant. The Merchant releases Gifted from any claims, demands, and damages arising out of disputes with other Users or parties.
8.3 IN NO EVENT WILL GIFTED BE LIABLE TO MERCHANT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF GIFTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF GIFTED TO MERCHANT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO GIFTED BY MERCHANT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.4 The Merchant acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
9. INDEMNIFICATION
9.1 Merchant’s Indemnity Obligations: The Merchant agrees to hold, harmless, indemnify, and, at Gifted’s option, defend Gifted from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Merchant’s or any Authorized User’s negligence or willful misconduct; (ii) Merchant’s or any Authorized User’s use of the Platform or Service in a manner not authorized or contemplated by this Agreement; or (iii) The Merchant indemnity responsibility, provided that the Merchant will not settle any third-party claim against Gifted unless such settlement completely and forever releases Gifted all liability with respect to such claim or unless Gifted consents to such settlement, and further provided that Gifted will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
10. COMPLETION OF EXISTING REDEMPTIONS UPON TERMINATION
10.1 Without derogating from the term and termination provisions in the General Terms, the Merchant hereby acknowledges and undertakes that, upon termination:
10.1.1 It will conclude, deliver and complete any Gift redeemed by a Recipient before the effective termination date;
10.1.2 Gifted shall be authorized to deduct or withhold any sum owned by the Merchant to Gifted, or in the case of a dispute with a User and sum which Gifted may be required to pay to such User upon Gifted sole discretion. Any other entitlements for redeemed gifts shall be transferred to the Merchant no more than 30 days following receipt of by Gifted.
11. MERCHNATS PERSONAL INFORMATION
11.1 The Merchant acknowledges and warrants that any information fed and provided by the Merchant or on its behalf (including through any of its Authorized Users), was collected, processed and transferred to the Platform lawfully and in accordance with all applicable privacy regulations.
11.2 Any usage of the data transferred to the Merchants following a redemption of a Gift offer, including any personal data related to a Recipient, shall be managed and processed by the Merchant under its sole responsibility in accordance with applicable laws and regulations. Merchant acknowledges and agrees that following the transfer of such personal data, Gifted has no control nor responsibility for the usage of such data, including any required disclosure or consent related thereto.
