1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
The Services (as defined below) offered by HiGabriel, Inc. (“HiGabriel”) at www.higabriel.com (either through a web site, a web widget, an application for a third-party web site or service, any mobile application, or any other similar platform, whether owned, controlled, operated or offered by HiGabriel (collectively, the “Site”) are provided to parties registering with and using the Services (each such person, a “User” and collectively, the “Users”), whether such User (a “Purchaser”) is purchasing HiGabriel Gift Boxes (as defined below) or such User (a “Recipient”) has received a HiGabriel Gift Box (as defined below), under these Terms of Service and any additional operating rules or policies that may be published by HiGabriel on the Site. These Terms of Service are legally binding between each User and HiGabriel, they comprise the entire agreement between each User and HiGabriel and they supersede all prior agreements, arrangements or understandings between each User and HiGabriel regarding the subject matter contained herein. BY ACCESSING THE SITE, COMPLETING THE REGISTRATION PROCESS, OR SELECTING OR REDEEMING A HIGABRIEL GIFT BOX, EACH USER ACKNOWLEDGES THAT HE OR SHE HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THESE TERMS OF SERVICE, WITHOUT LIMITATION OR QUALIFICATION. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Service.
2. PROHIBITED SERVICES
Use of the Services is void where prohibited and by using the Services, each User represents and warrants that such User has the right, authority, and capacity to enter into these Terms of Service and to abide by all the terms and conditions herein. Each User must be at least 18 years of age (or have reached the age of majority if that is not 18 years of age where such User lives) to use the Services, provided, however, that certain gifts may require the Purchaser and/or the Recipient to be a certain age in order to use the Services. Each User swears and affirms that he or she is over the age of 21 if such User is selecting or redeeming an HiGabriel Goods (as defined below) which contains alcohol (an “Alcohol Product”). HiGabriel reserves the right to prosecute to the fullest extent of the law: any attempt by any User to misconstrue his or her age, either directly or indirectly; or any attempt to use the Site or the Services to provide an Alcohol Product to a person under the age of 21. Selection by a Purchaser, and redemption by a Recipient, of any Alcohol Products is subject to all applicable laws.
Users may register on the Site to select a HiGabriel Gift Box,or view and edit their account (“Account”). In order to register with HiGabriel, Users may be required to provide, among other information, Facebook account validation, a valid email address (which will be used as a unique identifier for User’s Account), a valid phone number and create a password, as appropriate. Purchaser and Recipient are solely responsible for determining if purchase and receipt is appropriate, and HiGabriel accepts no liability for any such redemption, the refusal to redeem a HiGabriel Box, for the acts or omissions of any Recipient prior to or following redemption, or for lost or stolen HiGabriel Boxes.
4. DESCRIPTION OF SERVICE
The Site allows Purchasers to select and purchase a HiGabriel Box for a Recipient, such as a friend, colleague, family member or other acquaintance, and each such Box can then be received by the Recipient for the products or services (the “Goods”) offered on the Site in such Theme Boxes, which shall then be shipped by HiGabriel, or a third party on behalf of HiGabriel, to the Recipient (collectively, the “Services”). Such prices are subject to change at any time, with or without notice. All applicable sales taxes (computed to the nearest cent) are included in the total of each order.
A list of available Goods is provided on the Site and may vary by Theme Box. HiGabriel reserves the right to make changes in the list of Goods in any Theme Box, at any time, with or without notice, and does not guarantee that specific Goods will be available at all times. HiGabriel has the right to place additional restrictions on HiGabriel Boxes, and any stipulations with respect to the shipment of any Goods.
TERMS OF SALE
Each HiGabriel Box purchase is valid for the redemption of one (1) specified Box in the applicable Theme Box. Purchaser will be required to provide a valid address for the Recipient. Purchaser represents and warrants that it has the right to provide all information to HiGabriel necessary to order and provide the HiGabriel Box or otherwise use the Services. If a Recipient declines a HiGabriel Box, or is returned as undeliverable, in that case, HiGabriel will make the sender aware, but no refund or replacement is due.
REFUNDS AND RETURNS
All selections for HiGabriel Boxes are non-refundable and non-reversable. Additionally, HiGabriel Boxes cannot be returned or exchanged. However, HiGabriel may, in its sole discretion, cancel any order and refund any amounts paid. Goods may not be returned unless they are deemed defective upon receipt by the Recipient. Any such returns must be coordinated directly with HiGabriel.
5. NO RESALE; CONTENT; NO UNLAWFUL USE.
User’s right to use the Services is personal to such User. User agrees not to resell or make any commercial use of the Services without the express written consent of HiGabriel.
User is solely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (collectively “Content”) that User uploads, posts, publishes or displays (collectively, “Post”) or, emails or otherwise transmits or uses via the Site or pursuant to any of the Services offered thereon. User hereby grants HiGabriel a perpetual, irrevocable, non-exclusive, sub-licensable, transferable, worldwide royalty-free right and license to use all Content User provides to HiGabriel on the Site or otherwise, for any purpose, including the right to copy, store, modify, distribute, perform, display, reformat, excerpt, translate and create derivative works of such Content, in any media known now or in the future, and to allow others to do the same. User irrevocably waives any so-called moral rights and rights of attribution.
HiGabriel reserves the right, but does not assume the responsibility, to monitor or review User’s conduct on the Site and/or use of the Services. User’s use of the Site and the Services is subject to all applicable laws and regulations.
User agrees not to use the Site or any of the Services to:
Post, email, transmit Content in any way that, in the sole judgment of HiGabriel:
is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful (racially, ethnically or otherwise) or is in any manner objectionable, which determination shall be in the sole judgment of HiGabriel;
is contrary to any applicable law or under any contractual or fiduciary obligations of User, HiGabriel, or any third party;
infringes on any intellectual property or other proprietary rights of HiGabriel or any other party;
constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, or use any distribution lists (commercial or otherwise);
utilizes software viruses, invalid data, viruses, worms, other software agents, or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment (whether owned by HiGabriel or any other party); or
restricts or inhibits any other person from using or enjoying the Services, or which may expose HiGabriel or its users to any harm or liability of any type;
“stalk”, harass or otherwise violate the legal rights of others;
harm any person in any way;
impersonate any person or entity, or falsely state or otherwise misrepresent User’s affiliation with any person or entity;
manipulate identifiers in order to disguise the origin of any Content transmitted through the Site or pursuant to the use of the Services;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized pursuant to these Terms of Service;
interfere with or disrupt the Site, the Services or any servers or networks connected therewith, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
utilize any “deep-link”, “page-scrape”, “robot”, “spider”, “bot” or other automatic tool to use or access the Site or the Services in any manner not explicitly agreed to by HiGabriel
violate any terms which may be applicable for any particular area of the Services; or intentionally or unintentionally violate any applicable law or regulation;
use the Site or the Services in any unlawful manner or in any manner that could damage, disable, overburden, or impair the Site or the Services or interfere with any other party’s use and enjoyment of the Site or the Service; or
access or obtain or attempt to access or obtain any materials or information through any means not intentionally made available or provided for through the Services.
HiGabriel has the right, in its sole discretion, to terminate User’s Account, such User’s ability to utilize the Site and the Services, and to void any applicable HiGabriel Box, if HiGabriel, in its sole discretion, determines that User’s acts or omissions violate any terms or conditions of these Terms of Service.
User is solely responsible for maintaining the confidentiality of User’s password and Account information, and for any and all activities that occur through User’s account. User may change the password or any other Account information once logged in to the Site. User agrees to notify HiGabriel immediately of any unauthorized use of the Account or any other breach of security known to User, and must promptly inform HiGabriel of actual or apparent breaches of security, such as loss, theft, or unauthorized disclosure or use of a User Account or password. User remains liable for any use of the Services through its Account, whether or not authorized by User. In consideration for using the Service, User agrees to: (1) provide certain current, complete, and accurate information about User when prompted to do so by the Site or requested by HiGabriel, and (2) maintain and update such information as required in order to keep such information current, complete and accurate. If any information provided by User is inaccurate, HiGabriel reserves the right to terminate User’s Account and the right to use the Site and the Services.
“HiGabriel”, all HiGabriel logos, and all titles, characters, names, graphics and button icons are service marks, trademarks and/or trade dress of HiGabriel or otherwise, are proprietary to HiGabriel and may not be used by any User or any other party for any reason other than as expressly permitted by these Terms of Service. All other trademarks not owned by HiGabriel (or its affiliates) that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by HiGabriel or its affiliates and neither User, nor any third party shall acquire any ownership rights in such marks, logos or names by using the Site or the Services.
10. INDEMNIFICATION / LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, USER AGREES TO INDEMNIFY AND HOLD HIGABRIEL, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, MANAGERS, EQUITY OWNERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “HIGABRIEL GROUP”), AS APPLICABLE, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, DUE TO OR ARISING OUT OF USER’S USE OF THE SERVICES, ANY CONTENT PROVIDED BY USER, THE VIOLATION OF THESE TERMS OF SERVICE BY USER, THE INFRINGEMENT BY USER (OR ANY OTHER USER OF THE SERVICE USING USER’S ACCOUNT) OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY OR VIOLATION OF ANY APPLICABLE LAW OR REGULATION. THIS INCLUDES, BUT IS NOT LIMITED IN ANY WAY TO, ANY HARM A USER MAY EXPERIENCE FROM RECEIVING ANY OF THE GOODS OFFERED ON THE SITE – WHETHER CONSUMABLE OR NOT. HIGABRIEL IS IN NO WAY RESPONSIBLE FOR INJURY CAUSED AS A RESULT OF ANY GOOD, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FOOD ALLERGY, DEFECT, UNSAFE PRODUCT OR PACKAGING, PRODUCT LIABILITY, INJURIES (INCLUDING DEATH) OR OTHERWISE. IT IS USER’S SOLE RESPONSIBILITY TO CONFIRM GOOD INGREDIENTS OR GOOD COMPONENTS AND ENSURE APPROPRIATE SAFETY MEASURES ARE TAKEN WHEN USING ANY GOODS. SIMILARLY HIGABRIEL IS NOT RESPONSIBLE FOR ANY HARM A USER MAY EXPERIENCE BY USING OR HANDLING ANY NON-CONSUMABLE PRODUCT ACQUIRED THROUGH THE SERVICES. USER AGREES AND UNDERSTAND AND INTENDS THAT THIS ASSUMPTION OF RISK AND RELEASE IS BINDING UPON USER AND USERS HEIRS, EXECUTORS, AGENTS, ADMINISTRATORS AND ASSIGNS. IN ADDITION, HIGABRIEL SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF HIGABRIEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICES OR A HIGABRIEL GIFT BOX; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) ANY GOODS REDEEMED OR OBTAINED OR CONTENT RECEIVED OR TRANSACTIONS ENTERED INTO WITH HIGABRIEL OR A THIRD PARTY THROUGH THE USE OF THE SITE OR THE SERVICES OR A HIGABRIEL GIFT BOX; OR (IV) UNAUTHORIZED ACCESS TO USER’S ACCOUNT OR ALTERATION OF USER’S ACCOUNT OR DATA. USER SPECIFICALLY AGREES THAT HIGABRIEL IS NOT RESPONSIBLE OR LIABLE TO USER OR ANYONE ELSE FOR ANY UNLAWFUL, HARASSING, DEFAMATORY, ABUSIVE, THREATENING, HARMFUL, VULGAR, OBSCENE, SEXUALLY EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OR SPEECH OF ANY OTHER PARTY ON OR THROUGH THE SITE OR THE SERVICE, OR FOR ANY INFRINGEMENT OR VIOLATION OF USER’S RIGHTS BY ANY OTHER PARTY, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. HIGABRIEL’S TOTAL LIABILITY TO USER FOR BREACH OF CONTRACT AND FOR ALL OTHER CLAIMS (INCLUDING TORT CLAIMS) ARISING IN CONNECTION WITH THESE TERMS OF SERVICES, THE SITE, SERVICE, OR THE HIGABRIEL GIFT BOXES, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL PAYMENTS MADE BY USER TO HIGABRIEL HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SOME USERS.
User may terminate its participation in the Services with or without cause at any time and effective immediately. Likewise, HiGabriel may terminate the Services or User’s use of the Services with or without cause at any time and effective immediately. HiGabriel shall not be liable to User or any third party for termination of the Services or termination of User’s use of the Services. Should User object to any terms or conditions of the Terms of Service or any subsequent modifications HiGabriel makes to the Terms of Service or become dissatisfied with the Services in any way, User’s only recourse is to immediately: (1) discontinue use of the Service; and (2) notify HiGabriel of User’s termination and, (3) at User’s discretion, notify HiGabriel of the reasons for User’s termination. Upon termination of User’s participation in the Service, User’s right to use the Services shall cease immediately. All provisions of these Terms of Service which, according to their terms or their nature, should survive termination of any User’s participation, including without limitation provisions with respect to limitation of liability and disclaimer of warranties, shall so survive.
12. TRANSACTIONS WITH ORGANIZATIONS OR INDIVIDUALS
HiGabriel shall not be liable for User’s interactions with any retailers and/or individuals found on or through the Site. HiGabriel has no obligation to become involved in disputes between Users, or between Users and any third party.
13. LINKS TO THIRD PARTY SITES
Any web sites that are accessible via links included within the Site that take User away from the Site are not under HiGabriel’s control and HiGabriel is not responsible for the content, products or services of any linked website. All such websites shall be subject to the policies and procedures of the owner of such websites. We encourage Users to read those policies and know their rights under any website User visits.
14. VIOLATION OF TERMS BY OTHER USERS
HiGabriel asks that all Users take reasonable action to ensure that all users of the Site or the Services follow the terms of these Terms of Service by reporting any use of the Site or Services, or any reviews, messages or other postings that violate these Terms of Service. To report a violation of these Terms of Service, please email us at email@example.com.
15. DISCLAIMER OF WARRANTIES
USER EXPRESSLY AGREES THAT USER’S USE OF THE SITE, SERVICES AND GOODS IS AT USER’S SOLE RISK AND EXPENSE AND IS SUBJECT TO THESE TERMS OF SERVICE (AS MAY BE POSTED OR MODIFIED BY HIGABRIEL FROM TIME TO TIME), ANY APPLICABLE LAW, AND ANY ADDITIONAL TERMS AND CONDITIONS IMPOSED BY ANY SUPPLIER WITH WHOM THE RECIPIENT REDEEMS THE HiGabriel Box. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HIGABRIEL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HIGABRIEL MAKES NO WARRANTY THAT THE GOODS OR THE SERVICES WILL MEET USER’S REQUIREMENTS, OR THAT ITS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. HiHIGABRIEL Gabriel MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE. USER ACKNOWLEDGES THAT HIGABRIEL DOES NOT CONTROL CONTENT, INFORMATION OR GOODS OFFERED BY SUPPLIERS, ADVERTISERS, THIRD PARTIES OR OTHER USERS ON OR THROUGH THE SITE OR SERVICES, INCLUDING BUT NOT LIMITED TO INFORMATION OR GOODS PROVIDED PURSUANT TO A LICENSE WITH HIGABRIEL FROM THIRD PARTIES OR CONTENT PROVIDED BY OTHER USERS. HIGABRIEL ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, USEFULNESS OR DECENCY OF CONTENT OR GOODS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO SUPPLIERS, ADVERTISERS AND USERS) THROUGH THE SITE OR SERVICES. HIGABRIEL MAKES NO WARRANTY REGARDING ANY GOODS REDEEMED OR OBTAINED THROUGH ITS SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH ITS SERVICE OR THE USE OF A HIGABRIEL BOX. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM THE HIGABRIEL GROUP, THROUGH THE SITE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
16. GENERAL PROVISIONS
These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws provisions. The exclusive jurisdiction and venue of any action arising out of or related to these Terms of Service will be either the state or federal courts in New York, New York, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts; provided, however, that HiGabriel, in its sole discretion, may elect to settle any litigation in any way arising out of or relating to these Terms of Service, use by any User of the Site or the Services, or with respect to any Goods through binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be conducted in New York, New York, and judgment on the arbitration award may be entered into in any court having jurisdiction thereof. The prevailing party in any action to enforce these Terms of Service shall be entitled to reasonable costs and attorney’s’ fees. HiGabriel’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HiGabriel in writing. User and HiGabriel agree that any lawsuit arising out of or related to the these Terms of Service, use by any User of the Site or the Services, or with respect to any Goods, which is brought by a User or any third party, must commence within one (1) year after the cause of action arises; otherwise, such cause of action is permanently barred. No party shall be liable for failure of or delay in performing obligations (except for obligations regarding payment of money) set forth in these Terms of Service, and no party shall be deemed in breach of such obligations, if such failure or delay is due to natural disasters or any causes reasonably beyond the control of such party. The provisions of these Terms of Service are solely for the benefit of User and HiGabriel, and, except as specifically provided herein, no third party (including creditors of any party) may seek to enforce, or benefit from, these provisions, or seek redress for any breach or other damage, alleged or proved, under these Term of Service. The section titles in these Terms of Service are solely used for the convenience of the parties and have no legal or contractual significance.
If any provision of these Terms of Service, either in whole or in part, is held to be illegal, invalid, void as against public policy, or unenforceable for any reason under present or future law, such provision shall be fully severable without effect on the remaining provisions, which shall continue in full force and effect and remain legal, valid, effective, and enforceable as if the illegal, invalid, void, or unenforceable provision(s) had never comprised a part of such provision or these Terms of Service, as applicable. In lieu of the illegal, invalid, void, or unenforceable provision, there shall be added a provision as similar in terms and legal effect to the illegal, invalid, void, or unenforceable provision as may be possible and which may be legal, valid, effective and enforceable.
18. MODIFICATIONS TO THE SERVICES AND TO TERMS OF SERVICE
HiGabriel reserves the right to modify or discontinue all or any portion of the Services with or without notice to User. HiGabriel shall not be liable to User if HiGabriel modifies or discontinues all or any portion of the Services. HiGabriel may change the terms and conditions of the Terms of Services at any time in its sole discretion. User’s continued use of the Site or the Services subsequent to such modification to the Terms of Service shall be deemed an acknowledgement and acceptance by User thereof.
In order to provide continuous service, HiGabriel automatically renews all paid subscriptions for the Services on the date such subscriptions expire. We always communicate renewal periods to you in the subscription plan page, before you finalize the purchase, upon confirmation of your subscription and in the body of any special promotions sent to our users. By entering into this Agreement, you acknowledge that your account will be subject to the above-described automatic renewals. In all cases, if you do not wish your service to renew automatically, please follow the directions set out on your account page.