1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE:
The services offered at www.gifts.com, and any subdomains, including without limitation store.gifts.com, (collectively the "Site") are provided to you under the terms and conditions of this Gifts.com Terms of Service ("Terms of Service"), and any operating rules or policies that may be published by Gifts.com at the URL: www.gifts.com (the "Service"). The Terms of Service are a legal agreement between you and Giftco, LLC dba Gifts.com ("Gifts.com", "us", or "we").
2. SERVICES VOID WHERE PROHIBITED:
Use of the Services is void where prohibited. By using this Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all the Terms of Service of this Agreement.
You are required to register with Gifts.com if you want to write a review, create profiles of gift recipients, create and access your reminders, purchase a product and view and edit your profile. In order to register with Gifts.com you must supply a valid email address, which will be used as a unique identifier for your account, and a password. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password. By logging into the Site, you represent and warrant that: (i) you are a customer who registered for the services; (ii) that you are using the services only for permitted purposes; and (iii) you are not a competitor of Gifts.com, or agent thereof. You will immediately notify us of any unauthorized use of the password or account or any other breach of security. You agree to exit from your account at the end of each session.
If you create an account, you represent and warrant that: (i) you will not select or utilize a user name of another person with the intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that personÕs authorization to use such name; (iii) you will not select or utilize a user name that Gifts.com in its sole discretion deems offensive; and (iv) you are not a competitor of Gifts.com, or agent thereof.
4. DESCRIPTION OF SERVICE:
Gifts.com provides users with a variety of online services, including but not limited to:
- Gift Ideas Gifts.com will suggest gift ideas for friends and family based on certain information you provide to us about the recipient such as age, gender, and personality. You may also search for gift ideas based on a specified price range, the occasion for which you would like to
purchase a gift, and the recipient's personality. You can email a gift idea to another person by clicking on a gift idea in a results listing, and then clicking on "email" under the product's description.
- Gift Reminders A reminder can be created by providing the recipient's name and the name and date of the occasion. You may view your gift reminders by clicking on My Gifts.com at the top of the page. At your personalized homepage, you may add new reminders or
edit existing ones. Upcoming gift reminders, saved profiles of gift recipients and wish lists will all be viewable at the My Gifts.com page.
- Recommendations You may search for gift recommendations by clicking on Personality, Occasion, Category or Gift Lists at the top of any page on Gifts.com, or on the My Gifts.com page by clicking on "Suggested Gift Ideas" next to a recipient's profile name.
- Reviews Gifts.com may allow you to post reviews of gifts, which will be displayed underneath each product. Your reviews may viewable by all Gifts.com registered users. Gifts.com reserves the right to pull down a review if it contains derogatory language, threats of physical
harm, or any other reason Gifts.com determines in its sole discretion is necessary to protect the integrity of its service. In the rare event the Gifts.com unintentionally or inadvertently accepts profane or unacceptable language in a review, users are encouraged to report
such abuse to the Gifts.com administrator.
- Birthday Reminders Gifts.com may allow you to request birth dates from friends and family members. If a friend or family member responds to your birthday reminder request, Gifts.com will remind you in advance of that person's birthday and will provide gift suggestions.
Gifts.com reserves the right to limit or prevent your ability to send these email requests if the emails contain derogatory language, threats of physical harm, or to protect the integrity of the Gifts.com service, as determined in Gifts.com's sole discretion. In furtherance of
this endeavor, the Gifts.com Web site will automatically reject certain profane and otherwise inappropriate words in an email. In addition, you may not use the email requests to send "spam", as further described below in Section 8 of these Terms of Service.
- Gift Purchases Gifts.com may allow you purchase certain products directly via the Gifts.com store. Purchases placed directly through Gifts.com will be governed by these Terms of Services.
6. COPYRIGHT POLICY / INFRINGING MATERIAL / DMCA Policy:
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information owned or controlled by someone else without obtaining the prior written consent of the owner of such proprietary rights.
If you are notifying Gifts.com of alleged copyright infringement, please be sure to provide the following information in the form required by 17 USC Section 512:
- A description of the copyrighted work that you allege is being infringed, or, if multiple copyrighted covered by a single notification, a representative list of such works;
- A description of the allegedly infringing material and information sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or an electronic mail address;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, or its agent, or the law; and
- A statement by you that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed.
Designated Agent for Notification of Claimed Copyright Infringement
NAME: Blake T. Bilstad, Esq.
ADDRESS: Office of the General Counsel
Giftco LLC c/o Provide Commerce, Inc.
4840 Eastgate Mall
San Diego, CA 92121
We may terminate the privileges of any user who uses the Site or Services unlawfully to transmit copyrighted material without a license, express consent, valid defense or fair use exemption to do so.
7. NO "SPAMMING":
You must not use any feature of the Gifts.com Service for chain letters, junk mail, or "Spamming" nor make any use of the distribution lists in a manner involving any person who has not given specific permission to be included in such a process. An email advertisement which is (a) addressed to a recipient with whom you do not have an existing business or personal relationship and (b) is not sent at the request of or with the express consent of the recipient to receive such communications from you ("Spam" or "Spamming") is strictly prohibited by Gifts.com. If you use any feature of the Gifts.com Service for the purpose of sending Spam, Gifts.com reserves the right to immediately terminate your access to the Gifts.com Service and to seek appropriate legal recourse as necessary. If you believe that other users are using the Gifts.com Service for Spam, please notify Gifts.com using the Report Abuse form that is available by clicking the "Report Abuse" link under a user's product review.
You are solely responsible for maintaining the confidentiality of your password and account, and for any and all activities that occur under your account. You may change your password or any other account information at any time by going to your My Account page once you have logged in. You may also set up a new account at your convenience. You agree to notify Gifts.com immediately of any unauthorized use of your account or any other breach of security known to you. You must promptly inform Gifts.com of actual or apparent breaches of security, such as loss, theft, or authorized disclosure or use of a user account or password. Until Gifts.com is notified of a breach in security, you will remain liable for any unauthorized use of the Gifts.com Service through your account. In consideration for using the Gifts.com Service, you agree to: (1) provide certain current, complete, and accurate information about you when prompted to do so by the Service, and (2) maintain and update this information as required to keep it current, complete and accurate. If any information provided by you during your original registration or in your My Account is inaccurate, Gifts.com reserves the right to terminate your account immediately and your right to use the Gifts.com Service.
10. NO RESALE OR COMMERCIAL USE, ABUSE OF THE SERVICE:
Your right to use the Gifts.com Service is personal to you. You agree not to resell or make any commercial use of the Gifts.com Service without the express consent of Gifts.com. You may not create bots or other computer generated automatic tools to abuse the Gifts.com Service in any manner. Use that constitutes abuse shall be determined by Gifts.com in its sole discretion. Gifts.com reserves the right to terminate your account if Gifts.com determines you have not complied with these Terms of Service.
11. USER CONDUCT:
Gifts.com reserves the right, but does not assume the responsibility, to monitor or review your conduct on the Gifts.com Site. Your use of the Gifts.com Service is subject to all applicable local, state, national and international laws and regulations.
In using the Gifts.com Service you agree not to:
12. ORDERING PRODUCTS AND SERVICES:
- Use the Gifts.com Service for illegal purposes;
- Interfere or disrupt networks connected to the Gifts.com Service or violate the regulations, policies or procedures of such networks;
- Use the Gifts.com Service in connection with chain letters, junk mail, surveys, contests, pyramid schemes, or use any distribution lists including any person who has not given specific permission to be included in such a process (commercial or otherwise);
- Harvest or otherwise collect information about other users, including e-mail addresses, without their consent;
- Transmit through the Gifts.com Service any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit, or otherwise objectionable material of any kind or nature;
- Invade another's privacy or violate rights of publicity or intellectual property rights (including but not limited to copyright, trademark and patent rights) while using the Gifts.com Service;
- Transmit through the Gifts.com Service any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
- Interfere with another User's use and enjoyment of the Gifts.com Service;
- Defame, abuse, harass, stalk, threaten or violate the legal rights (such as rights of privacy and publicity) of any other user;
- Create a false identity for the purpose of misleading others as to your identity or the origin of a message;
- Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity that is not a user of the Gifts.com Service any directory of Gifts.com's users or usage information or any portion thereof other than in the context of your use of the Service as permitted under these Terms of Service;
- Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
- Attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or
- Engage in any other conduct which, in Gifts.com's sole discretion, is considered inappropriate, unauthorized or objectionable.
You must be 18 years or older, and have a valid credit card, with full authority to use it, to submit an order for products or services through the Site.
Prices; Colors; Availability: All prices listed on the Site are subject to change. In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right, prior to acceptance of your order pursuant to our Order Acceptance Policy described below, to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
Please note that the colors of the items and products may depend on your monitor and may not be correctly displayed.
The availability of products and other items on the Site may change at any time, without notice.
Order Acceptance Policy: Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.
Payment Terms: For each product or service you order on the Site, you agree to pay the price applicable for the product or service (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. Unless you and Gifts.com have agreed to an alternate billing arrangement in writing signed by Giftco LLC, Gifts.com will automatically bill your credit card submitted as part of the order process for such price. All prices are non-refundable. Without limiting other remedies, we reserve the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts.
Taxes: Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products.
We shall automatically charge and withhold the applicable sales tax for orders to be delivered to addresses within California, Illinois and Massachusetts.
Each customer shall be solely responsible for all sales taxes, or other taxes, customs, import/export charges, or similar governmental charges (except for taxes on Gifts.com net income), on orders shipped to any other state or on orders shipped outside the United States.
We do not collect sales or use taxes in all states. For states imposing sales or use taxes, your purchase is subject to use tax unless it is specifically exempt from taxation. Your purchase is not exempt merely because it is made over the Internet or by other remote means. Many states require purchasers to file a sales/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and to pay tax on those purchases. Details of how to file these returns may be found at the websites of your respective taxing authorities.
For Oklahoma purchasers, the tax may be reported and paid on the Oklahoma individual income tax return [Form 511] or by filing a consumer use tax return [Form 21-1]. The referenced forms and corresponding instructions are available on the Oklahoma Tax Commission website, www.tax.ok.gov.
We may be required by Colorado law to provide purchasers an end-of-year summary of Colorado purchases in order to assist purchasers in filing their tax returns. We also may be required by law to provide the Colorado Department of Revenue with a report of the total amount of all your purchases at the end of the year.
Specials, Promotions and Sweepstakes/Contests: Please read the official rules that accompany each special offer, coupon, discount, contest and sweepstakes that we may offer or conduct. Special offers, coupons, or discounts cannot be used in conjunction with other offers. Limit one promotion per order.
Shipping and Delivery: Gifts.com, in conjunction with our service providers, will attempt to deliver in the estimated timeframe. You acknowledge that delivery dates are non-binding estimates only and that you have no claim against us for any delays or early deliveries. We reserve the right to make deliveries in installments, which shall not relieve you from your obligation to accept and pay for remaining deliveries. Our service providers do not telephone prior to delivering packages, and we cannot guarantee the time of delivery. All products are deemed accepted upon our delivery of the product to you or your designated recipient's address.
Gifts.com is not responsible for:
- Flowers, plants, fruits, sweets, gift products and preserved items delivered to incorrect addresses supplied by the sender.
- Unsuccessful deliveries arising from the recipient not being present at time of delivery at the address supplied by the sender.
- Decreased product quality due to an incorrect delivery address supplied by the sender, or a re-route requested by the sender.
- Product quality problems caused by improper handling by the recipient.
Free shipping offers are valid only on weekday deliveries to addresses within the Continental United States.
Order Cancellation Policy and Return Policy: Gifts.com does not allow orders to be edited or cancelled after submitted. All sales are final and products may not be returned, except as expressly permitted in these Terms of Service. In the event (a) you received the incorrect item or (b) the product was broken, damaged or otherwise inoperable, Gifts.com may, in its sole discretion, provide a refund for the purchase price or allow you to return the product.
You agree to indemnify and hold Gifts.com, its parent, subsidiary, affiliate, officers, employees, agents, directors, successors and assigns harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Site or Service, the violation of these Terms of Service by you, the infringement by you (or other user of the Service using your account) of any intellectual property or other right of any person or entity or violation of any federal, state or local law or regulation.
Gifts.com, in our sole discretion, may terminate the Gifts.com Service or your use of the Service at any time, for any reason, or no reason, including without limitation, if your conduct fails to conform to the terms and conditions of these Terms of Service. Gifts.com shall not be liable to you or any third party for termination of the Gifts.com Service or termination of your use of the Gifts.com Service. You may terminate your participation in the Gifts.com Service by notifying Gifts.com. Should you object to any terms and conditions of the Terms of Service or any subsequent modifications Gifts.com makes to the Terms of Service, your only recourse is to immediately: (1) discontinue use of the Gifts.com Service; and (2) notify Gifts.com of your termination and, at your discretion, notify Gifts.com of the reasons for your termination. Upon termination of your use of the Gifts.com Service, your right to use the Gifts.com Service shall cease immediately. You shall have no right and Gifts.com will have no obligation thereafter to forward any unread or unsent messages to your or any third party on your behalf. Further, your termination of use of the Site or Service shall not terminate any terms which by their nature shall survive, including without limitation, Sections 1 to 3, 5, 6, 8, 9, 10, 12 to 15, 18 to 22.
15. TRANSACTIONS WITH ORGANIZATIONS OR INDIVIDUALS:
Gifts.com shall not be liable for your interactions with any merchants, retailers and/or individuals found on or through the Gifts.com Service. This includes, but is not limited to, payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings. These dealings are solely between you and such merchants, retailers and/or individuals. Gifts.com is under no obligation to become involved in disputes between participants on the Gifts.com Service, or between participants on the Gifts.com Service and any third party.
16. LINKS TO THIRD PARTY SITES:
Any web sites that are accessible via links included within the Gifts.com Service that take you out of the Gifts.com Service are not under Gifts.com's control and Gifts.com shall not be 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 you to read those policies and know your rights under any web site you visit.
17. VIOLATION OF TERMS BY OTHER USERS:
Gifts.com asks that you participate in ensuring that all users follow the terms of these Terms of Service by reporting any user reviews or other postings or messages that violate these terms. To report a violation of these Terms of Service, please email us at or click on the Report Abuse link under user reviews.
18. DISCLAIMER OF WARRANTIES / LIMITATION OF LIABILITY:
Disclaimer of Warranties: YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, SERVICE AND PRODUCTS PURCHASED IS AT YOUR SOLE RISK. THE SITE, SERVICE AND PRODUCTS PURCHASED ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GIFTS.COM 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. GIFTS.COM MAKES NO WARRANTY THAT ITS SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. GIFTS.COM MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. YOU ACKNOWLEDGE THAT GIFTS.COM DOES NOT CONTROL CONTENT, INFORMATION, PRODUCTS OR SERVICES OFFERED BY ADVERTISERS, THIRD PARTIES OR OTHER USERS ON OR THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY LICENSE TO GIFTS.COM FROM THIRD PARTIES OR CONTENT PROVIDED BY OTHER USERS. GIFTS.COM ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, USEFULNESS OR DECENCY OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO ADVERTISERS AND USERS) THROUGH THE GIFTS.COM SERVICE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR ATTEMPT TO DOWNLOAD ANY MATERIAL FROM THE GIFTS.COM SERVICE. GIFTS.COM MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ITS SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH ITS SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GIFTS.COM OR THROUGH THE GIFTS.COM SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability: YOU AGREE THAT, EXCEPT AS EXPLICITLY SET FORTH HEREIN, GIFTS.COM, ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, LICENSORS, AND SUPPLIERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING TYPES OF DAMAGES RELATED IN ANY WAY TO OUR RELATIONSHIP WITH YOU (INCLUDING OUR PRODUCTS, SERVICES, OR CONTENT) OR THIRD-PARTY MATERIALS OR WEB SITES: INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, RELATED TO OUR PRODUCTS OR YOUR ACCESS TO, AND USE OF, OUR SITES OR ANY OTHER HYPER-LINKED THIRD PARTY WEB SITE, EVEN IF WE HAVE BEEN ADVISED OF, OR ARE AWARE OF, THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED IN ANY WAY TO OUR RELATIONSHIP WITH YOU (INCLUDING OUR PRODUCTS, SERVICES, OR SITE CONTENT), OR THIRD-PARTY MATERIALS OR WEB SITES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID TO GIFTS.COM FOR THE APPLICABLE TRANSACTION GIVING RISE TO THE LIABILITY, OR, IF THERE IS NO PAID TRANSACTION RELATED TO THE LIABILITY, THE LESSER OF THE AMOUNTS PAID BY YOU TO GIFTS.COM IN THE PRIOR TWELVE (12) MONTHS AND FIFTY DOLLARS ($50).
Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent of applicable law.
Basis of the Bargain: THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN GIFTS.COM AND YOU. GIFTS.COM WOULD NOT BE ABLE TO PROVIDE THE SITES (INCLUDING THE PRODUCTS, SERVICES, AND CONTENT) ON AN ECONOMICALLY ACCEPTABLE BASIS WITHOUT SUCH LIMITATIONS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF GIFTS.COMÕS SUPPLIERS.
19. DISPUTE RESOLUTION:
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Notwithstanding the foregoing, to the extent the Dispute arises from a violation of your or Gift.comÕs intellectual property rights in any manner, both parties agree that the non-infringing party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the "Governing Law" section below, and both parties consent to exclusive jurisdiction and venue in such courts.
Waiver of Class Arbitration: To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise ("Class Arbitration"). You further acknowledge and agree that any arbitrator assigned to a Dispute lacks the authority to conduct Class Arbitration and that such arbitrator shall only hear individual Disputes. By using the Site or Service, you acknowledge that you are voluntarily and knowingly waiving any right to participate as a representative or member of any class of claimants pertaining to any Dispute subject to arbitration under these Terms of Service, such that you shall not be entitled to arbitrate any Dispute as a representative, a class action or in a private attorney general capacity.
Governing Law: These Terms of Service and all Disputes shall be governed in all respects by the laws of the State of California, consistent with the Federal Arbitration Act, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. Further in any arbitration, both parties agree the arbitrator shall honor claims of privilege and privacy recognized under California law.
Enforcement of Arbitration Award: The arbitratorÕs award shall be final and binding on all parties subject to these Terms of Service, and may be entered as a judgment in any court of competent jurisdiction.
Severability: If any portion of this "Dispute Resolution" section (with the exception of your Waiver of Class Arbitration) is deemed invalid or unenforceable by any arbitrator or court of competent jurisdiction, the invalid or unenforceable portion shall be severed and removed from the Terms of Service, and the remaining portions (including your Agreement to Arbitrate Disputes) shall remain binding on you and Gifts.com.
However, if any arbitrator deems your Waiver of Class Arbitration to be invalid or unenforceable, then this entire "Dispute Resolution" section shall be null and void. Under such circumstances, you expressly acknowledge and agree that: (i) all Disputes shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions; (ii) all Disputes shall be resolved by a state or federal court located in the county of San Diego, California; and (iii) you will submit to the personal jurisdiction of such California state or federal courts for the purposes of litigating such Disputes.
Put differently, you agree that your Waiver of Class Arbitration cannot be severed from your Agreement to Arbitrate Disputes. Unless otherwise agreed to in writing, you expressly acknowledge and agree that it is your intent and the intent of Gifts.com not to proceed with any Dispute by way of Class Arbitration.
20. Outside the United States:
We make no representations that the Site, Service, Content or products available for purchase are appropriate for access or use outside the United States. Those who choose to access any one of our Site or Service from outside the United States do so on their own initiative and are responsible for compliance with local laws. If any provision within the Terms of Service is held to be invalid or unenforceable, such provision shall be struck and all remaining provisions shall be enforced.
21. GENERAL PROVISIONS:
If any provision of the Terms of Service is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect and the invalid, void, or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by the law. Section titles in the Terms of Service are for convenience and do not define, limit, or extend any provision of the Terms of Service. As used herein, the term "including" means "including without limitation". Our failure to enforce any right or provision shall not operate as a waiver of such right or provision. Neither party is the agent or partner of the other party. These Terms of Service may not be assigned by you without our prior written consent and any attempted assignment in violation of the foregoing shall be null and void. We may assign any of our rights under these Terms of Service without your prior written consent, to any third party. The terms of these Terms of Service shall be binding upon permitted assignees. Gifts.com may give notice to you by e-mail, a posting on the Site, or other reasonable means. You must give notice to Gifts.com in writing via e-mail or as otherwise expressly provided by Gifts.com.
22. MODIFICATIONS TO THE SERVICE AND TO TERMS OF SERVICE:
Gifts.com reserves the right to modify or discontinue the Gifts.com Service without notice to you. Gifts.com shall not be liable to you if Gifts.com modifies or discontinues its Service. Gifts.com reserves the right to change these Terms of Service at any time, effective immediately upon posting on our Site. If you violate these Terms of Service, we may terminate your use of the Site, bar you from future use of the Site or Services, and/or take appropriate legal action against you. You may print a copy of these Terms of Service using the print feature in your browser. We suggest retaining a copy for your future reference. It is your responsibility to periodically visit the "Terms of Service" link at the bottom of our home page to review the most current version of the Terms of Service. You may use your browser to print copies of any updated Terms of Service.