YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS. LINKMOUNTAIN SOFTWARE CORPORATION WILL LICENSE THE PRODUCT ONLY IF YOU AGREE TO ALL OF THESE TERMS. PLEASE READ THIS AGREEMENT: IF YOU DO NOT AGREE WITH ANY OF ITS TERMS, LINKMOUNTAIN DOES NOT AUTHORIZE YOU TO USE THE SERVICE.
Introduction
This Agreement ("Agreement") is between the entity or individual entering into this agreement ("You") and LinkMountain Software Corporation, a Nevada Corporation, owner of GiftedSites.com. Agreement is effective on the date that you begin to use the service.
Definitions
"GiftedSites.com" is an online gift certificate system used by vendors to offer their customers a gift certificate.
"I", "me", "you" refers to the person, or vendor using the GiftedSites.com Service/Software.
"LinkMountain", "LinkMountain Software Corporation" is the owner of the GiftedSites.com.
"Software Application", "Service" means access to the gift certificate application (GiftedSites.com), via delivery or electronic transmission, to You through the Internet. Service includes your computer account information, enhancements, maintenance modifications, upgrades, updates, software bug fixes, and error corrections. The use of the Software is provided as the "Service" and is not owned by You.
"Documentation" means all written or graphical material provided by LinkMountain in any medium, including any technical specifications, relating to the functionality or operation of the Software.
"Product" means the Software and Documentation.
I understand and agree that, subject to the terms and conditions of this Agreement, and the policies referenced herein, LinkMountain Software Corporation shall provide me with an online gift certificate software application (the Service). By accessing LinkMountain’s online Software Application through the Internet, I understand that I, and/or any person using my login identification (Authorized Users) explicitly and implicitly accept the terms and conditions contained in this agreement. I UNDERSTAND THAT "LINKMOUNTAIN SOFTWARE CORPORATION" RESERVES THE RIGHT TO TERMINATE THIS ACCOUNT AT ANY TIME, FOR ANY REASON.
OWNERSHIP OF THE PRODUCT
LinkMountain, or its Affiliates or licensors retain all right, title and interest to and in the Gift Certificate Software and all intellectual property, informational, industrial property and proprietary rights therein. LinkMountain neither grants nor otherwise transfers any rights of ownership in the LinkMountain Product to You. LinkMountain Products are protected by applicable copyright, trade secret, and industrial and intellectual property laws. LinkMountain reserves any rights not expressly granted to You herein.
Provision of Services/Access
I understand and agree that I am fully responsible for the use of my account by me or by anyone whom I permit to use my account, and that LinkMountain Software Corporation reserves the right to terminate my account at any time, for any reason. LinkMountain will provide me and my authorized user(s) digital access to my account. All communications, including billing, and payments are conducted online through the Internet and I agree to maintain my equipment and facilities to insure their my of the communications, accounts, billings and payments. LinkMountain will attempt to offer access to my account on a 24 hour, 7 days a week basis, however, subject to conditions generally beyond the control of LinkMountain, including, but not limited to, the type and condition of the equipment (personal computer, modem, etc.) that I have. I understand that the Network may be temporarily unavailable or limited because of capacity limitations and may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, and similar activities necessary for the proper operation of Network, as well as conditions of the Internet beyond LinkMountain’s control.
My Obligations
I understand that when using a trial account, I am subject to all of the same provisions of this agreement as with a normal account, except that trial accounts are provided solely for the purpose of evaluating the service, and TRIAL ACCOUNTS AND ALL ASSOCIATED DATA ARE PERIODICALLY DELETED FROM THE SERVER. I understand that LinkMountain is under no obligation to provide any value whatsoever with a trial account, and LinkMountain will not be liable for any damages that may occur as a result of my using a trial account.
I understand that the gift certificate software application is $49 per year, and that the anniversary date is from the time of receipt of payment. I also understand that LinkMountain may change its fees from time to time, and that LinkMountain will provide (2) two email notices at least 10 business days apart with at least 60 days advance notice of any changes taking effect.
I understand that I may cancel my account at any time. No refunds, or Prorating.
I understand that I am responsible for all text on the gift certificate, including but not limited to disclaimers, warranties, return policies, warnings, and all additional language that is necessary to comply with all laws, local, state, federal and international. I understand that LinkMountain expressly disallows any use of it’s product that does not comply with all laws wich apply to me, in my jurisdiction. I will discontinue use LinkMountain’s product if I am unable to comply with this paragraph.
I understand that I am responsible for the archiving and safekeeping of all data and that LinkMountain is not required to store any such archived data. You agree that data provided to you from LinkMountain is your responsibility, including backup, security, and data integrity. If data in your posession is lost or corrupted LinkMountain may try to help restore the data, if it still exists, solely as a goodwill effort, but does not provide any data storage services. LinkMountain will not provide any third party information regarding account names, or transactions to third parties. LinkMountain will not provide any customer data to any government(s) unless, in our judgement, we have been properly instructed to do so by a court holding proper jurisdiction. LinkMountain may use this data/information to improve the service.
I understand that I can not use or permit other users to use the Service in the following ways: infringe the rights of others; or interfere with users of LinkMountain’s or other networks; or infringe upon the copyrights, trademarks or other intellectual property rights of others; or assign to a third party; or otherwise violate the policies referenced in this Agreement.
Security
I understand that the information available through LinkMountain’s Network will not be given to any third parties for Marketing or Commercial purposes. I understand that internet communications are not secure, and may be subject to interception or loss. I understand that LinkMountain Software Corporation makes no warranties of any kind, whether expressed, implied, or statutory concerning either the security or accuracy of data and/or information available through the LinkMountain software application, or other interconnecting networks.
Term and Termination
I agree that this Agreement becomes effective upon registration of my login identification name along with receipt of payment and shall remain in effect until terminated. I understand that LinkMountain Software Corporation reserves the right to terminate my account at any time, for any reason, including, but not limited to, my failure to abide by the terms of this agreement or my failure to pay any fees or charges when due. If my account is deactivated, I understand that I may be required to pay reactivation charges and a prepaid deposit in order to reactivate my account. If my account remains inactive for a period of one year, or (365) days consecutively, I understand my account may be deleted. If my deleted account includes content stored on LinkMountain’s servers, anything stored therein will also be deleted. I understand that violation of certain generally accepted guidelines on Internet usage, such as restrictions on mass e-mailings and mass advertising, attempting to bypass LinkMountain security features, attempting to access the accounts of others, posting of inappropriate graphics or other content,or posting to inappropriate newsgroups, may cause severe operating difficulties for LinkMountian, and would likely be a cause for termination of my account. I agree to abide at all times by LinkMountain’s then-current Usage Policies.
Pricing/Payments/Credits
Since I have given my credit card number to LinkMountain Software Corporation, I understand that charges will be automatically billed to my credit card. I expressly authorize this automatic billing by LinkMountain Software Corporation. I agree that all charges are considered valid as of the invoice date. I understand and agree that LinkMountain shall not be responsible for any charges or expenses that I may incur resulting from overdrawing my bank account or exceeding my credit card limit as a result of an automatic charge generated by LinkMountain pursuant to this authority. I understand there shall be no credits, reductions, or setoffs against the charges for service for downtime or interruption of Service. I understand there will be no prorating for end of Service. All communications, payments, and invoicing are to be done electronically through the Internet, and via email.
Disclaimer And Limitation Of Liability
I understand that the use of my LinkMountain account, and any data or information accessed using that account, will be completely at my own risk. I understand that the cumulative liability of LinkMountain Software Corporation for any and all claims relating to the services provided by LinkMountain, in contract, tort, or otherwise, shall not exceed that total amount of the basic service fees paid to LinkMountain for services within the preceding twelve months. I agree that LinkMountain shall have no liability for any consequential, indirect, special or incidental damages regardless of the success or effectiveness of other remedies.
EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, THE PRODUCT IS PROVIDED "AS IS". LINKMOUNTAIN, ITS AFFILIATES AND LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LINKMOUNTAIN DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED, THIS INCLUDES LOSS OF ACCOUNT INFORMATION AND DATA.
LINKMOUNTAIN SOFTWARE CORPORATION SHALL NOT BE LIABLE FOR INTERRUPTIONS CAUSED BY FAILURE OF EQUIPMENT OR SERVICES, FAILURE OF COMMUNICATIONS, POWER OUTAGES, OR OTHER INTERRUPTION, NOR SHALL LINKMOUNTAIN BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY SUBSCRIBER’S OR ITS AUTHORIZED USERS’ EQUIPMENT. SUBSCRIBER HEREBY RELEASES LINKMOUNTAIN SOFTWARE CORPORATION, OFFICERS, MANAGEMENT AND STAFF FROM LIABILITY ARISING FROM ANY CONTENT, OR LOSS OF BUSINESS, ACCESSED VIA THE NETWORK. LINKMOUNTAIN PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED IN CASE OF LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. LINKMOUNTIAN SHALL NOT BE LIABLE IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF SUBSCRIBER’S OR ITS USERS’ EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL LINKMOUNTAIN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, OR SIMILAR LOSS. THE LIABILITY OF LINKMOUNTAIN FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF OR DISRUPTION OF SERVICE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THAT TOTAL AMOUNT OF THE BASIC SERVICE FEES PAID TO LINKMUNTAIN FOR SERVICES WITHIN THE PRECEDING TWELVE MONTHS. LINKMOUNTAIN MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, CONCERNING THE NETWORK, OR SOFTWARE, AND EXPRESSLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
Law And Jurisdiction
Any claim or controversy that arises out of or relates to this agreement, or the breach of it, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the State of Nevada, USA.
Physical location of the arbitration shall take place in the Detroit Metropolitan Area of Michigan first, with all subsequent actions taking place in Las Vegas, Nevada. All arbitration held in light of Nevada law, with final jurisdiction being Nevada, USA.
Current Contact Information:
American Arbitration Association
http://www.adr.org
Corporate Headquarters
335 Madison Avenue, Floor 10
New York, New York 10017-4605
212-716-5800 Fax: 212-716-5905
800-778-7879 Customer Service
Indemnity
I agree to defend, indemnify and hold LinkMountain Software Corporation and its affiliates harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or arising from, any violation of this agreement by me or those who access the Network, or Software through my account, or the use of the Software, Network or the Internet whether or not I have knowledge of or have authorized such access or use, including, without limitation, claims for libel, slander, invasion of privacy, infringement of copyright, patent infringement, or other tort behavior. I agree to indemnify LinkMountain along with any parties from whom LinkMountain obtains network services, and to hold them harmless from any claims resulting from the use of the Software, or Network by me or any authorized users that damage another party or that violate the law.
I agree to indemnify and hold LinkMountain Software Corporation and its affiliates harmless from the collection of any taxes, or any taxes owed to government(s), including fees, or jurisdictional claims that may arise from my activity using LinkMountain’s Software, or Network.
Complete Agreement/Amendments
This agreement, represents the complete agreement between LinkMountain Software Corporation and myself with respect to the subject matter of this Agreement, and supersedes any other written or oral agreement. I understand and agree that LinkMountain Software Corporation may amend or modify this agreement, or impose new conditions at any time. Any use of LinkMountain Software Corporation’s Software, or Network subsequent to any changes or amendments shall be deemed to constitute acceptance by me of the then-current service agreement (including any amendments, modifications or new conditions) as published and made available via a link on the LinkMountain Software Corporation home page.
GiftedSites.com Copyright © LinkMountain Software Corporation, PO Box 182 Port Sanilac, Michigan USA 48469