Gifts.com API Terms of Service and Developer Agreement
This Gifts.com API Terms of Service and Developer Agreement (the "Agreement") is an agreement between Giftco, Inc. ("Gifts.com) and you (“Developer”, "you" or "your") to use the Gifts.com Material(s). You must first read and agree to the terms of this Gifts.com API Developer Agreement. By submitting a complete registration form through the registration process (the “Application”), you are indicating that all of these terms are acceptable to you and you agree to the following terms and conditions in order to use the Gifts.com Materials.
Gifts.com reserves the right, from time to time, with or without notice to you, to change the terms of this Agreement in our sole and absolute discretion, at any time and without notice to you. The most current version of the Terms will supersede all previous versions.
By using the Gifts.com API subsequent to publication of modifications to the Terms, you agree to be bound to the full language of the most current Terms, as revised and published. Your only recourse if you disagree with the Terms, or changes to the Terms, is to discontinue your use of the API. As such, you should review the Terms periodically.
By submitting a complete Application, you acknowledge and agree that you have read and understand this Agreement, all incorporated agreements, and that if your Application is accepted by Gifts.com, this Agreement shall, immediately upon such acceptance, become a legal agreement between you and Gifts.com. The terms and conditions of this Agreement shall govern your participation in the Gifts.com Developer Program.
For purposes of this Agreement, the following terms will have the indicated meanings:
a. "Developer" "you" or "your" mean the name of the company or individual or other corporate entity provided in the Application.
b. "Developer Marks" means any and all trademarks, trade names, service marks or logos owned or licensed by Developer (other than any Gifts.com Marks licensed hereunder).
c. "Developer's Web Site" or "your Web Site" or "Developer Site" mean your Internet web site, all wholly owned and operated websites, any site indicated in your Application under "URL of Site, and any application distributed on a mobile or tablet device."
d. "Intellectual Property Rights" means, with respect to any data, device, or other asset of any kind, all copyright, patent, trade secret, moral, termination, authorship and other proprietary rights relating to any such data, device, object code, source code or other asset including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such data, device, object code, source code or other asset.
e. "Link(s)" mean Web page URL, banner or button advertisement, or other graphical or text element, provided by Gifts.com under this Agreement and containing one or more Gifts.com Marks and a link to a page on the Gifts.com Web site.
f. "Gifts.com Data" means XML or JSON data and links delivered to Developer as described herein and any attached Exhibit.
g. "Gifts.com Marks" means any and all trademarks, trade names, service marks or logos owned or licensed by Gifts.com (other than any Developer Mark(s) licensed hereunder).
h. "Gifts.com Materials" mean any Links, Gifts.com Mark(s), Keywords, Gifts.com Data or Gifts.com Product Data.
i. "Gifts.com Product Data" means the product specifications including but not limited to product image, attributes and description.
j. "Gifts.com Web Site" means the web site located at the URL http://gifts.com or another URL belonging to Gifts.com, or any other web site owned or operated by Gifts.com including, without limitation, co-brand sites and private label sites that include Gifts.com Data.
3. Enrollment in the Gifts.com Developer Network
4. Links to the Gifts.com Service
If you successfully complete the Application and are accepted by Gifts.com, then Gifts.com may provide you with access to the Gifts.com Application Programmer Interface (“Gifts.com API”) XML or JSON content integration services in accordance with the API Guidelines, as set forth on the Gifts.com Web Site at http://www.gifts.com/developer/guidelines.
Any failure to follow the API Guidelines and/or violations of the API Guidelines constitute a material breach of your obligations under this Agreement and must be remedied immediately.
Each element of Gifts.com Data shall have a corresponding URL link provided by Gifts.com. Gifts.com reserves the right to change the contents of the Gifts.com Data including, but not limited to, excluding categories (and merchant offers) from such Gifts.com Data from time to time in its sole discretion without notice to you.
You will not use any information gained through your participation in the Gifts.com Developer Program and/or your access of the Gifts.com Data to solicit any Gifts.com advertiser or client.
6. Ownership and Limited License
a. License. Subject to the terms and conditions of this Agreement, Gifts.com grants you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to use the Gifts.com Materials on your Developer Site, solely in connection with the exercise of your rights under this Agreement.
b. Ownership. You acknowledge that Gifts.com now and at all times hereafter is the exclusive owner of all right, title and interest in and to all Gifts.com Materials. You receive and acquire no license(s) with respect to any Gifts.com Materials except as expressly granted in this Agreement. You agree that you will not assert any copyright, trademark or other intellectual property ownership or other proprietary rights in any Gifts.com Materials, or any part of these items or in any derivative work of these items. Except for the right to use the Gifts.com Materials as set forth in Sections 4 and 5 of this Agreement, nothing contained in this Agreement shall be construed to grant you any right, title or interest in or to any intellectual property of Gifts.com including, without limitation, any Keyword list, Link and/or Gifts.com Mark and you are prohibited from making any use thereof of any nature except as expressly authorized in this Agreement. You agree that you will not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Gifts.com Marks or in such a way as to create combination marks or otherwise.
c. Use of Gifts.com Marks. Under no circumstances may you use Gifts.com's Marks for any purpose other than the placement of Links on your Developer Site in accordance with this Agreement. You specifically acknowledge that entry into any agreement with a third party for the purchase of traffic involving keywords that are identical to or similar to any of Gifts.com's Marks will constitute a breach of this Agreement and will also constitute trademark infringement.
7. Representations and Warranties and Indemnification
a. Your Warranties. You represent and warrant that:
(i) you have full power and authority to enter into this Agreement;
(ii) you will comply with all applicable laws, rules and regulations, if any, related to the performance of your obligations under this Agreement;
(iii) you will not copy, store, archive, distribute to any third party (other than to end users of your Developer Site as contemplated in this Agreement), alter or modify in any fashion, any Gifts.com Data that you access or receive under this Agreement;
(iv) you fully own and control all the development, maintenance and operation of, and content on your Developer Site (other than Gifts.com Materials when used in accordance with the terms of this Agreement,), the software and technology used by you in connection with your Developer Site, and the means by which users access your Developer Site;
(v) all content and materials on your Developer Site(s) are owned or validly licensed for use by you or in the public domain;
(vi) none of the content and materials on your Developer Site constitutes defamation, libel, obscenity or violate any rights of publicity or privacy;
(vii) none of the content and materials on your Developer Site will result in any consumer fraud, product liability, breach of contract to which you are a party or which cause injury to any third party;
(viii) you will not influence a search engine's result in a way that violates such search engine's published policies including without limitation its "spam" policy; and
(ix) your Developer Site(s) do not and will not contain or directly link to any objectionable material, as determined by Gifts.com in its sole discretion, but which includes, without limitation, pornography, obscene language or other obscene content, or support for violent or hate groups.
b. Indemnification. You agree to defend, indemnify and hold Gifts.com, its parent, subsidiary and affiliate entities, and its and their directors, officers, employees, agents and assigns, harmless from and against any and all losses, costs, claims, liabilities, damages, suits, actions or expenses (including, without limitation, reasonable attorneys' fees) arising from or in connection with any breach of these warranties or your performance under this Agreement.
c. Disclaimer of Warranty. GIFTS.COM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE GIFTS.COM WEB SITE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In addition, Gifts.com makes no representation or warranty that the Links, the operation of the Gifts.com Web Site, the Gifts.com API will be uninterrupted or error-free, and Gifts.com will not be liable for the consequences of any interruptions or errors.
During the term of this Agreement, you may receive or have access to certain information from or about Gifts.com which is proprietary and must be treated accordingly ("Confidential Information.") Confidential Information does not include information that is generally known and available, or in the public domain through no fault of you or another party. Confidential Information includes any API, keywords and Gifts.com statistics, whether individually or compilations thereof. You agree (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except to carry out your rights and responsibilities under this Agreement and (iii) to keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long that is at least reasonable care. You acknowledge and agree that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of your obligations hereunder, that any such breach may allow you or third parties to act unfairly resulting in irreparable harm to Gifts.com and, therefore, that upon any such breach or threat thereof, Gifts.com shall be entitled to injunction and other appropriate equitable relief in addition to whatever remedies it may have at law. In addition, if Gifts.com prevails in any legal dispute hereunder, it shall be entitled to collect its reasonable attorneys' fees and expenses.
9. Limitation of Liability
GIFTS.COM WILL NOT BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE, AND WHETHER OR NOT GIFTS.COM WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. Term and Termination
a. Term. The term of this Agreement (the "Term") shall commence on the date your Application has been accepted by Gifts.com and shall continue until terminated by either party.
b. Termination. Gifts.com, immediately for any material breach of this Agreement by you immediately, without notice. In addition, either party may terminate this Agreement for any reason or no reason, upon notice.
c. Effect of Termination. Upon the termination of this Agreement for any reason all license rights granted herein shall terminate immediately, and you shall immediately cease use of the Gifts.com Materials.
a. Survival. In the event of any termination or expiration of this Agreement for any reason, Sections 5, 6b, 6c, 7, 8, 9, 10c, 11 and the obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality requirements, ownership and property rights) shall survive any such expiration, termination or cancellation.
b. Amendments. Gifts.com may change the terms and conditions of this Agreement by posting notice of such change on the Gifts.com Developer Web Site. Any use of the Gifts.com Materials after such notice is posted or delivered to you shall be deemed to be your continued acceptance of this Agreement including its amendments and modifications.
c. Assignment. Only Gifts.com may assign its rights or delegate its obligations under this Agreement. You may not assign this Agreement or any of your rights or obligations.
d. No Third Party Beneficiaries. All rights and obligations of the parties hereunder are personal to them. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
e. Publicity. Other than as otherwise specifically permitted by this Agreement, you may not create, publish, or distribute any item (e.g. press release) that references Gifts.com without first submitting those items to Gifts.com for approval and receiving Gifts.com's written consent.
f. Governing Law. This Agreement shall be governed by and interpreted in accord with the laws of the State of California applicable to agreements entered into and to be performed wholly in California. The parties hereby consent to the exclusive jurisdiction of any State or Federal court empowered to enforce this Agreement in the State of California, County of Los Angeles, and the parties waive any objection thereto on the basis of personal jurisdiction or venue.
g. Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
h. Independent Contractors. The parties are independent contractors. This Agreement shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
i. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
j. Entire Agreement. This Agreement, including the API Guidelines and the accompanying Application, constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof.
k. Severability. If any provision of this Agreement shall be held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
l. Section Headings. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
m. Foreign Web Sites. IN ADDITION TO ALL OTHER CRITERIA CONSIDERED BY GIFTS.COM WITH RESPECT TO THE APPLICATION OF A PROSPECTIVE ASSOCIATE, NO APPLICANT SHALL BE ADMITTED TO THE GIFTS.COM DEVELOPER NETWORK PROGRAM UNLESS SUCH APPLICANT'S WEB SITE OR APPLICATION IS MARKETED AND DIRECTED AT RESIDENTS OF THE UNITED STATES OF AMERICA OR CANADA, AS DETERMINED BY GIFTS.COM IN ITS SOLE DISCRETION. GIFTS.COM MAY MODIFY ITS ASSOCIATE PROGRAM AT ANY TIME TO ALLOW APPLICANTS AND DEVELOPERS FROM COUNTRIES OTHER THAN THE UNITED STATES OF AMERICA AND CANADA, BUT SHALL BE UNDER NO OBLIGATION TO DO SO.