THIS IS A CONTRACT
These Terms of Use (the “Agreement”) constitute a binding agreement between Wish For You and its affiliates and subsidiaries (collectively, “Wish For You”) and you with respect to all information, data, graphics, content, software applications, including the Wish For You Website, the Wish For You Platform, and other Wish For You products and services (collectively, the “Services”) provided, facilitated or otherwise made accessible on or through the website, located at www.wishforyou.com, (hereinafter, the “Site”), and your use of and access to our Services offered on the Site. In this Agreement, “we”, “us”, “our” and other similar references mean
Wish For You and “you” and “your” and other similar references mean a specific user or users of the Services, either individually or as a registered couple.
IF YOU DO NOT AGREE TO THESE TERMS THEN YOU MAY NOT ACCESS OR USE THE SERVICES. BY USING AND ACCESSING THE SERVICES (OTHER THAN TO REVIEW THE TERMS AND CONDITIONS OF THIS AGREEMENT), YOU AGREE TO BE BOUND BY THIS AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS BELOW. YOU SHOULD READ THIS AGREEMENT CAREFULLY BEFORE USING OR ACCESSING THE SERVICES, BECAUSE THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND OBLIGATIONS. YOU SHOULD ALSO RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS. ALL CAPITALIZED TERMS SHALL HAVE THE MEANING SET FORTH IN THIS AGREEMENT.
ABILITY TO ACCEPT THESE TERMS OF USE
You represent and warrant that you have the legal power, authority and capacity to accept the terms of this Agreement. You represent and warrant that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with these Terms of Use. You may not access the Services if you are under the age of 13 years.
OUR SERVICES
Wish For You’s Services bring together givers and recipients of monetary gifts in a convenient online platform. If you would like to become a Recipient or Giver, complete the registration process and to review the additional terms and conditions, if any, that will apply to you. Once you become a Recipient or Giver, those additional terms will take precedence over these Terms of Service, to the extent of any inconsistency.
If you choose to register, you agree to provide us with accurate, complete registration information. It is your responsibility to inform us of any changes to that information by emailing support@wishforyou.com. Each registration is for a single user only. We do not permit (a) any other person to access Recipient-only or Giver-only sections of the Site under your name, or (b) access the Services through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use.
THIRD PARTY PAYMENTS
We provide one or more links to third-party sites that process transactions between Givers and Recipients, or their representatives. You acknowledge and agree that we do not control these transactions and that the transmission of gifts is solely between Giver and Recipient, by means of our third-party payment processor. When a Giver’s gift has been made, the Giver agrees that the amount of the gift may be deducted from the Giver’s credit card and reserved or secured until the Recipient withdraws the funds. All Givers and Recipients must comply with all terms and conditions imposed by our payment processor, in addition to these Terms of Service. Among these terms and conditions are a gifting limit of $8000 per day per user, and a requirement that all Recipients be located in the United States or Australia
OUR CONTENT AND USER SUBMISSIONS
We own all right title, and interest in and to the Wish For You content we post on the Site or otherwise make available through the Services (“Our Content”). We grant you a non-exclusive, worldwide, royalty-free perpetual, non-transferable license to access and use Our Content solely for your personal, non-commercial purposes, consistent with the terms of this Agreement.
With respect to all content you choose to post on the Site or otherwise make available through the Services (“User Submissions”), you warrant and represent that all User Submissions are solely your intellectual property or that you have obtained any necessary permissions or licenses to make use of such User Submissions and to grant us the license granted below. You are solely responsible for your User Submissions and you agree not to submit User Submissions that violate this Agreement in any way.
You grant us a non-exclusive, worldwide, royalty-free, perpetual, sublicensable and transferable license to access and use any User Submissions in connection with developing, delivering, and promoting the Services.
DMCA/COPYRIGHT INFRINGEMENT POLICY
We reserve the right to terminate the access of any user who infringes third party copyright or other third party intellectual property rights, whether through unauthorized User Submissions or otherwise, upon prompt notification to us by the third party rights holder or its legal agent. We maintain a strict policy of terminating access to users who are alleged to be repeat infringers of such third party rights. Any person who or which believes that his, her or its intellectual property has been copied and posted via the Site (or Services) in a way that constitutes infringement shall provide us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the rights holder; (b) an identification and location on the Site (or Services) of the property that is claimed to be infringed; (c) a written statement by such person that he, she or it has a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) such person’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such person that the foregoing information in the notice is accurate and, under penalty of perjury, that the person delivering the notice is the owner of the property in question or authorized to act on the owner’s behalf. Notices to us regarding any alleged infringement should be directed to us at support@wishforyou.com.
LIMITATIONS ON USE
All content we make available through the Services, whether Our Content or User Submissions, is provided solely for your personal use and not for commercial exploitation. You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense or create derivative works from the Services. Nor may you use any network monitoring or discovery software to determine the Services’ architecture, or extract information about usage, individual identities or users. You may not use any robot, spider, other automatic software or device, or manual process to monitor or copy our Services without our prior written permission. You may not copy, modify, reproduce, republish, distribute, display or transmit for commercial, non-profit or public purposes all or any portion of the Services, except to the extent permitted above. You may not use or otherwise export or re-export the Services or any portion thereof, or any software available on or through the Services in violation of the export control laws and regulations of the United States of America. Any unauthorized use of the Services is expressly prohibited. Wish For You does not authorize the harvesting or collection of screen names or addresses from any Wish For You service for the purpose of sending unsolicited email, or for any other purpose.
You may not employ any language or content that is unlawful, obscene, vulgar, defamatory, abusive, threatening, profane, invasive of privacy or publicity rights, false, libelous, slanderous or otherwise objectionable. You may not upload, distribute or make available anything that may be harmful to minors or otherwise violates applicable criminal law. You may not take any action or upload, distribute or make available any content that violates, misappropriates or infringes upon the rights of others in any way, including any patents, copyrights, trademarks, trade secrets, rights of privacy, rights of publicity, or moral rights of any third party. You may not upload, distribute or make available content that contains advertising, publicity or solicitation for a product or services that did not receive prior written approval from Wish For You. You may not use the Services to collect any personally identifiable information, including profile names, email addresses or other such information for commercial purposes. You may not use of this Service in any jurisdiction that does not give effect to all provisions of this Agreement.
Without limiting the generality of the above, you may not:
· use the Services in any manner that could damage, disable, overburden or impair the Services or any server or other hardware associated with the Services;
· disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
· use the Services to contact any other person for purposes not expressly permitted under this Agreement;
· interfere with any other party’s use and enjoyment of the Services;
· frame or otherwise display content from a source other than the Services in conjunction with Our Content or User Submissions;
· circumvent any technological measure used by Wish For You to control access to or use of the Services;
· use the Services in any manner to deceive, defraud, or mislead any person, or in violation of any local, state or federal law use any Wish For You-owned mark or product name as a meta-tag or other ‘hidden text’ for search engines in a manner that does not inure to the benefit of Wish For You. If you believe another user is in violation of any portion of this Agreement, please notify us electronically at support@wishforyou.com or by mail at Wish For You, Unit 9, 120 Cambridge St, Collingwood Vic 3066 Australia
LINKS
Links to or from other websites may be provided on the Wish For You Site or through the Services. Wish For You assumes no responsibility of any kind for the content or availability of these links, or your use thereof. By inserting links to the site or making them available through the Services, Wish For You does not endorse any such website or its content. Wish For You is not responsible for Terms of Service, or any other governing terms or conditions, of any websites other than the Site.
NO PERFORMANCE WARRANTY
You use the Services, information on the Services, and materials linked from the Services at your own risk. We do not represent, warrant or guarantee (a) the accuracy, reliability, completeness, adequacy or currency of the information contained in or linked to on the Services, (b) that the Services will be error-free, free of viruses or other harmful components, (c) that known defects will be corrected or (d) that the Services will always be accessible. We may make improvements and/or changes to the Services, and their features, functionality or content at any time in our discretion.
UNLAWFUL ACTIVITY
We reserve the right in our sole discretion to investigate complaints, violations of our Terms of Service and any potential violations of applicable law, but we undertake no obligation to do so. In connection with any such investigation, we may take any action we deem appropriate including, without limitation, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, email addresses, usage history, posted materials, IP addresses and traffic information. If you encounter any prohibited content, material or other potential violations on the Services, you should immediately report such content or violations to support@wishforyou.com.
DISCLAIMER
THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS AND “AS AVAILABLE” BASIS. WISH FOR YOU EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WISH FOR YOU SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO (A) ANY THIRD PARTY WEBSITES (OR MOBILE APPLICATIONS, LINKS, ETC.) OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS ON THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (B) THE UNAVAILABILITY OF THE SERVICES OR ANY PORTION THEREOF, (C) YOUR USE OF THE SERVICES OR THE CONTENT, (D) ANY USER SUBMISSIONS, and (E) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES OR THE CONTENT. WISH FOR YOU FURTHER SPECIFICALLY DISCLAIMS LIABILITY FOR ANY LOSS OF DATA STORED ON OR BY MEANS OF THE SERVICES, AND DISCLAIMS LIABILITY FOR ANY LOSS OF DATA OR OTHER DAMAGE ARISING FROM SPYWARE, MALWARE, OR OTHER THIRD-PARTY CAUSES. WISH FOR YOU FURTHER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, ERROR OR DELAY FREE, SECURE, OR FREE FROM BUGS, VIRUSES OR OTHER PROGRAM LIMITATIONS.
WHERE ANY JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES AS SET FORTH ABOVE IN A PARTICULAR CIRCUMSTANCE, THEN WISH FOR YOU SHALL BE ENTITLED TO THE BENEFIT OF SUCH DISCLAIMERS AND LIMITATIONS TO THE EXTENT PERMITTED BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE.
LIMITATION OF LIABILITY
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH WISH FOR YOU IS TO DISCONTINUE YOUR USE OF THE SERVICES. WISH FOR YOU SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM YOUR USE OF THE SERVICES OR THE CONTENT, INCLUDING ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES OR THEIR CONTENT. TO THE EXTENT THIS LIMITATION ON LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, WISH FOR YOU’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL BE LIMITED TO THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT OR $100.00, WHICHEVER IS LESS. FURTHER, WISH FOR YOU SHALL NOT BE LIABLE IN ANY INSTANCE WHATSOEVER FOR ACTIONS BY ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, ADVERTISEMENTS AND SOLICITATIONS, WHICH HAVE NOT BEEN EXPRESSLY AUTHORIZED BY WISH FOR YOU.
THE LIMITATIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND WISH FOR YOU. WISH FOR YOU WOULD NOT BE ABLE TO PROVIDE YOU WITH SERVICES WITHOUT SUCH LIMITATIONS.
INDEMNIFICATION
You are solely liable for any User Submissions, content, messages or other information you upload to or make available through the Services. You agree to indemnify, defend and hold harmless Wish For You from any third party claim, action, demand, loss or damages (including attorney’s fees and costs) arising out of or relating to (a) your violation of any term of these Terms of Service, (b) your use of or access to the Services, (c) your User Submissions, (d) any improper, unauthorized or illegal uses of your profile, and (e) your violation of any rights of a third party, including without limitation any property or privacy right.
THIRD PARTY RIGHTS
The provisions of these Terms of Service (e.g., Disclaimer, Limitation of Liability and Indemnification) are for the benefit of Wish For You and its affiliates, officers, directors, employees, agents, representatives, vendors, licensors, licensees, suppliers, and any third party information- or service providers to the Services. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on his, her or its own behalf.
REMEDIES FOR VIOLATIONS
We reserve the right to seek all remedies available at law and in equity for violations of these Terms of Service, including, but not limited to, the right to block access to the Services and their features from a particular Internet address or mobile phone number.
DISPUTE RESOLUTION BY ARBITRATION / NO CLASS ACTION
You understand and agree that all claims, disputes or controversies between you and Wish For You, or its affiliates, or their respective directors, officers, employees, representatives and agents, arising under or related to this Agreement the Services, the content, or the use or operation of the Services, including tort and contract claims, claims based upon any federal, state or local statute, law, order, ordinance or regulation, and the issue of arbitrability, shall be resolved by final and binding arbitration before the Courts of Victoria Australia, in accordance with the laws of Victoria, Australia
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU. YOU CAN OPT OUT OF THE ARBITRATION BY FOLLOWING THE INSTRUCTIONS IN THE LAST PARAGRAPH OF THIS ARBITRATION CLAUSE. YOU UNDERSTAND THAT UNLESS YOU EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. YOU ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN YOURSELF AND WISH FOR YOU AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING. RIGHT TO OPT OUT: If you do not wish to be bound by this arbitration clause, you must notify Wish For You in writing within sixty (60) days after such time as you become bound by this Agreement as set forth above in the section titled “This Is a Contract”, or your rejection of arbitration will not be effective. You must send your request to us. Your request must include your telephone number(s) and a clear statement of your intent to opt out, such as “I reject the arbitration clause stated in the Terms of Service Agreement.”
EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, THE DISPUTE RESOLUTION PROCEDURE SPECIFIED ABOVE APPLIES AND, WE AND YOU EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
MODIFICATIONS TO TERMS OF SERVICE
We reserve the right to change these Terms of Service at any time. Updated versions of the Terms of Service will appear on the Services and are effective immediately. You are responsible for regularly reviewing the Terms of Service. Continued use of the Services after any such changes constitutes your consent to such changes.
Governing Law This Agreement is governed by the laws of Victoria, Austalia, without regard to the conflicts of laws principles thereof.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all other prior written or oral agreements between Wish For You and you regarding such subject matter. For the avoidance of doubt, to the extent that you are subject to additional terms as a Recipient or Giver, the terms of that agreement shall also be binding on you and shall take precedence in the event of any inconsistency.
SEVERABILITY
The invalidity or unenforceability of any provision of these Terms & Conditions shall not for those reasons alone affect the validity or enforceability of any other provision of these Terms & Conditions.
TERMINATION
You have the right to discontinue your use of the Services any time upon notice to Wish For You, and Wish For You has the unlimited right to terminate or limit your access to the Services at any time and for any reason and without notice. In the event of termination, you are no longer authorized to access or use the Services. The restrictions imposed on you with respect to content acquired from the Services, and the disclaimers, limitations of liabilities and dispute resolution provisions set forth in these Terms of Service, shall survive. In any event, all of Wish For You’s rights under this Agreement (and to the extent applicable, all of the rights under this Agreement of its affiliates, its and its affiliates’ directors, officers, employees, representatives and agents, licensees and licensors) shall survive any termination of this Agreement.
NO CONSTRUCTION AGAINST DRAFTER
The terms of this Agreement shall not be construed against Wish For You by virtue of its having drafted them.
NO IMPLIED THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended to confer on any third party (whether referred to in the Agreement by name, class, description or otherwise) any benefit or any right under any legislation in any country to enforce any provisions of this Agreement, except as expressly contemplated in this Agreement.
SHORTENED STATUTE OF LIMITATIONS
ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, OR THE SUBJECT MATTER OF THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
INDEPENDENT CONTRACTORS
You and Wish For You are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency.
NO ASSIGNMENTS OR TRANSFERS
You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without Wish For You’s prior written consent (in its sole discretion), and any attempt by you to do so in violation hereof will be void and ineffective. Wish For You and its affiliates may assign their respective rights and obligations under this Agreement (in whole or in part) without your consent or notice to you.
CONSENT TO ELECTRONIC COMMUNICATIONS
Wish For You will generally communicate with its users by electronic means, such as email. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.