Last updated September 1, 2013.
Please read the following carefully before using the service provided Smartgift (the "Service").
By signing up to Smartgift’s online technology for retailers you expressly acknowledge and agree, on
your own behalf as an individual, and on behalf of your employer or another entity which has not
yet done so (collectively "You" or "Your"), that You are entering into a binding legal agreement with
Smartgift, Inc. ("Smartgift"), are over 18 years of age, have full authority to bind such employer or other
entity, and have understood and agree to comply with the terms below ("Terms"). You hereby waive
any applicable rights to require an original (non-electronic) signature or delivery or retention of non-
electronic records, to the extent not prohibited under applicable law.
The Service includes a Content Management System. "Content" means any information that You may
transmit from your Magento content management system in connection with the Service, such as
written text, graphics, stylized logos, photographs, images and similar materials. As between Smartgift
and You, You retain title to Content. You agree that You shall not include Content that is or gives rise
to, and Smartgift may (but is not required to) refuse or remove Content that it determines in its sole
discretion to be, (a) unlawful, offensive, threatening, harmful, libellous, defamatory, pornographic,
gambling-related, obscene, racist, infringing or otherwise objectionable; (b) not wholly-owned by
or validly licensed to You; (c) a violation of a third party's intellectual property rights; (d) a breach of
these Terms; and/ or (e) a violation of the terms and conditions, as modified from time to time, of
Smartgift's vendors who provide products, services, and other resources to enable the Service ("Third-
Party Vendor"). Content must include Your name and address, and Your contact information (telephone
number, email address) to which user questions, complaints or claims should be directed.
Once You submit required Content to Smartgift, You (a) authorize and appoint Smartgift to integrate the
Content with its proprietary solution to create a smart gifting service ("Gifting Service"); (b) will provide
Smartgift with all information including modified Content that it requests in connection with such
integration; (c) grant Smartgift the right to distribute or otherwise make the Gifting Service available in
its sole discretion and acknowledge that Smartgift may at any time cease to offer, or change or enforce
terms that govern, and could require modification or affect the continued availability of, the Gifting
3. Gifting Service and Content
You (and not Smartgift or a Third-Party Vendor) are solely responsible for the Gifting Service and
Content, including but not limited to product warranties, product claims, maintenance and support
services, other third-party claims including but not limited to those related to infringement of a party's
intellectual property rights, compliance with any applicable law or regulation including but not limited
to those relating to privacy and data collection, and ensuring that users are neither restricted parties
according to any U.S. government list nor located in a country that is subject to a U.S. Government
embargo or "terrorist supporting" designation. For a claim related to any of the aforementioned, You
(and not Smartgift or a Third-Party Vendor) will be solely responsible for its investigation, defense,
settlement, and discharge.
4. Other Requirements
You acknowledge and agree that (a) information transmitted or gathered in connection with the Service or the Gifting Service may be used in an aggregated and anonymized manner; (b) Third-Party Vendors and their affiliates are third party beneficiaries of these Terms, and that such entities will have (and be deemed to have accepted) the right to enforce them against You; (c) as between You and Smartgift, You are solely responsible for any errors, issues, or downtime caused by or attributable to Your (or Your agents) customization of the Gifting Service; (d) by virtue of their ability to access the Gifting Service, users may be subject to terms and conditions similar to these Terms; (e) Your Gifting Service or other terms, if any, generally binding users, shall incorporate and adapt (to as great an extent as possible), and be at least as restrictive and protective of Smartgift and Third-Party Vendors, as each of the provisions identified in this Section 4, and each of Smartgift and Third-Party Vendors and their affiliates shall be third-party beneficiaries to such terms, which shall indicate that such entities will have (and be deemed to have accepted) the right to enforce them against users; and (f) You shall not include, modify, or apply any terms, limitations, or disclaimers in any agreements with users that contradict or supersede either these Terms or any minimum user terms that Smartgift incorporates as part of the Gifting Service.
5. Gifting Service Usage
You acknowledge and agree to use the Service solely for the purpose of running an online gifting service. You are solely responsible for backing-up and archiving any of Your Content or other data that may be stored on Smartgift's (or its third party service provider's) servers. Under no circumstances will Smartgift be liable for damages of any kind for any loss of Your Content or data.
You are solely responsible for maintaining the confidentiality of Your password and account information and ensuring the security, confidentiality and integrity of Content that is transmitted through or stored on Smartgift's (or its third party service provider's) servers.
For such time as You are current in your payment of any fees hereunder, Smartgift or its authorized representative will use commercially reasonable efforts to provide support services.
8. Title and Protection
Except as expressly set forth herein, Smartgift (or its third party providers) retain all right, title, and interest to all portions of the Service, associated software, and any modifications, enhancements, or derivative works thereof.
9. Fees and Payments.
9.1 The provision of the Service and availability of the Gifting Service, and Your use thereof, is subject to Your timely payment of set-up fees, monthly or annual subscription fees, if applicable.
9.2 Smartgift reserves the right to impose or change fees immediately by so posting on the Smartgift website at www.smartgift.it.
9.3 Fees, if applicable, are not refundable, including in the event of You choosing to downgrade
Your plan level, and are exclusive of all taxes, levies, or duties, which are Your responsibility.
9.4 Smartgift will charge applicable fees to the credit card account that You authorize, and
Smartgift will continue to charge that card (or any replacement card) for Your subscription
including renewals. If You continue to receive the Service but, for some reason, payment is not
received from Your card issuer, You agree to promptly pay all amounts due upon demand.
10. Refund, Exchange and Cancellation
10.1 Refunds will be made after the deduction of our commission and any transactional fees so the full amount of any purchases via the Service or the Gifting Service cannot be refunded.
10.2 Exchanges do not apply due to the nature of the Gifting Service whereby recipients of a gift choose their preferred product details before the item ships. Any exchanges thereafter are to be handled by You.
10.3 Cancellations do not apply due to the nature of the Gifting Service whereby recipients of a gift have 60 days to redeem their gift. Any cancellations thereafter are to be handled by You.
11. Free Trial Period
Smartgift occasionally offers a free, no-obligations trial period of the
Service ("Trial Period").
12.1 You may discontinue Your use of the Service at any time by sending an email message to
firstname.lastname@example.org. Smartgift may terminate or suspend Your use of the Service at any time
if You breach these Terms (including any failure to pay the applicable fees on time). Smartgift
reserves the right to terminate or refuse service to anyone for any reason at any time.
12.2 Upon any discontinuation or termination of Your use of the Service, You will lose all access
to the Service and Gifting Service and any Content and other data in connection thereto.
Smartgift reserves the right to (a) deactivate the Gifting Service at any time following the
effective date of termination; and/or (b) permanently delete from its (or its third party service
provider's) servers any Content and other data that may be contained in Your account at any
time following a period of forty five (45) days from the effective date of termination. Smartgift
does not accept any liability for any deactivation of the Gifting Service or deleted Content or
12.3 The provisions of sections 3 to 6, 8, 12 to 15 and 19 shall survive termination.
You agree to defend, indemnify and hold harmless Smartgift and its affiliates
and their respective officers, directors, agents, consultants and employees from any claims,
damages, liabilities, costs, and expenses (as incurred, including attorney's fees) arising from
(a) Your use of the Service or the Gifting Service; (b) the use by any third party of the Gifting
Service; and (c) Your failure to comply with these Terms.
Except for as expressly set forth herein, the Service is provided on an "as is"
and "as available" basis, and without warranties of any kind either express or implied. You
assume all responsibility for the selection of the Service to achieve Your intended results.
SMARTGIFT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED, NONINFRINGEMENT AND IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SMARTGIFT DOES
NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR
THAT DEFECTS WILL BE CORRECTED. SMARTGIFT DOES NOT OFFER A WARRANTY
OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OR THE USE OF THE
SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, RISK OF INJURY
TO YOUR OR ANY USER'S COMPUTER, NETWORK, MARKET, OR CUSTOMER BASE OR
COMMERCIAL ADVANTAGE. Applicable law may not allow the exclusion of certain warranties,
so to that extent such exclusions may not apply.
15. Limitation of Liability
Except to the extent prohibited by applicable law, in no event shall
Smartgift or Third-Party Vendor, or their affiliates, subsidiaries, or third party licensors, be
liable for any damages whatsoever (including without limitation, consequential, indirect, special,
punitive, or incidental damages, or damages for loss of business profits, business interruption,
loss or corruption of data, or other pecuniary loss) arising out of the use or inability to use the
Service, even if Smartgift has been advised of the possibility of such damages. Except to
the extent prohibited by applicable law, in no event shall the liability of Smartgift, its affiliates,
subsidiaries, and its third party licensors, if any, for damages under these Terms or arising from
use of the Service exceed the amount paid by You to Smartgift for the Service in the six (6)
months immediately preceding the claim.
16. Publicity and Branding
You agree that Smartgift may (a) publicize Your name, the
fact of the Gifting Service and Your use of the Service; and (b) brand the Gifting Service with
a "powered by Smartgift" or similar legend and/or copyright notice.
17. Force Majeure
Smartgift shall not be responsible for failures of its obligations under this
Agreement to the extent that such failure is due to causes beyond its control including, but not
limited to, acts of God, acts of war, governmental acts, fire, sabotage, strikes, failure of the
Internet (not resulting from the actions or inactions of Smartgift), strikes or labor difficulties,
severe weather conditions, and/or delay in, or of, transportation, suppliers or subcontractors.
If the Service is unavailable for a period of thirty (30) days consecutive days as a result of a
continuing force majeure event, You may cancel Your subscription to the Service, but there
shall be no liability on the part of Smartgift.
You acknowledge and agree that Your use of the Service, including, without
limitation, information transmitted to or stored by Smartgift, is governed by the Smartgift
privacy statement at www.smartgift.it/site/policy.
These Terms represent the complete agreement concerning the Service between
You and Smartgift and supersede all prior agreements and representations related to the
subject matter hereof. These Terms shall be deemed agreed in and governed by the laws of
the State of New York, excluding choice of law principles. All proceedings shall be conducted in
English. You agree that venue for all proceedings shall be Kings County, New York, provided
that venue shall also be proper in any court of competent jurisdiction where Smartgift seeks
(a) injunctive relief against You to enforce the Terms; and/or (b) to join You in a suit brought by
a third party related to the Service or the Gifting Service. The United Nations Convention for the
International Sale of Goods shall not apply. Section headings are provided for convenience only
and have no substantive effect on construction. Except for Your obligation to pay Smartgift,
neither party shall be liable for any failure to perform due to causes beyond its reasonable
control. Notice shall be deemed effective when received by the designated fax, email, or postal
address. If any provision is held to be unenforceable, the Terms shall be construed without such
provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of
such party's right to exercise such right or any other right in the future.
Smartgift reserves the right to modify these Terms at any time by
publishing the revised terms on the Smartgift website at www.smartgift.it. The revised Terms
shall become effective within ten (10) days thereof.
18 Bridge Street, #2C
Brooklyn, NY 11201
Registered office address:
1 Hanson Place, #19L
Brooklyn, NY 11243