TERMS AND CONDITIONS
These Terms and Conditions should be read carefully by the Client as they provide the legal framework against which the Company agrees to provide Services to the Client (as defined below) and to which the Client agrees to be bound.
1.Definitions and Interpretation
1.1.In these terms and conditions (the “Terms and Conditions”) the following words and phrases shall have the following respective meanings unless the context requires otherwise:
- 1.1.1.“Agreed User” means a specified individual within a Client’s family or personal staff as named in the Request by the Client (or as subsequently notified by the Client to the Company) as having such Client’s express authority to instruct the Company to provide Services on the Client’s behalf;
- 1.1.2.“Company” means MyUSGift Inc., a New York Corporation, the address of whose principal office is 54 W 40th St, New York, NY 10018; and shall include, its officers, directors, employees, subsidiaries, parents and other affiliates;
- 1.1.3. “Goods” means any goods purchased by the Company and subsequently provided to the Client under the Terms and Conditions, which goods shall be deemed to have been purchased by the Company as agent for the Client;
- 1.1.4.“Services” means any services provided by the Company to the Client under the Terms and Conditions including the purchase of Goods on behalf of the Client;
- 1.1.5. “Client” means the person or corporate entity requesting the Services, where acceptance of a request has been communicated to the Client by the Company;
- 1.1.6.“Request” means the application for Services by the customer.
- 1.1.7.“Payment Method” means payment by cash or ACH;
- 1.1.8. “Service Fee” means the fee charged by the Company to the Client for the provision of its Services;
- 1.1.9.“Services” means the Company’s provision of goods ordered and purchased by the Company and subsequently provided to the Client on the Client’s behalf;
- 1.1.10.“Vendor” means any third party with who the Company liaises in providing the Services while acting as agent on behalf of the Client;
- 1.1.11.“Website” means http://myusgift.com/.
1.2.In these Terms and Conditions:
- 1.2.1.Words denoting the singular shall include the plural and vice versa; words denoting the masculine shall include both the feminine and neutral gender and vice versa as the context may permit:
- 1.2.2Any reference to a statutory provision shall include any amendment, replacement or re‐enactment thereof; and
- 1.2.3The headings of clauses are intended for convenience only and shall not affect the interpretation of the Terms and Conditions.
2.Payment Terms. Service Procedures
2.1.Client shall pre-pay the Service Fee upon receipt of confirmation that Client’s Request has been accepted by the Company. If requested Goods are unavailable or not in stock at the time of Request, the Company shall notify the Client that the requested Goods are currently unavailable and the anticipated date on which such Goods shall become available, and Client shall have twenty-four (24) hours from receiving such notice to cancel the order. In the event Client does not cancel the order in such a case, Client shall pay the Service Fee within seven (7) days of submitting the Request.
2.2.The Company’s normal business hours are 9am to 6pm Eastern Standard Time, Monday through Friday. The Company may be available to provide Services to Client outside these hours. Normal Business Hours may be lengthened or shortened in the sole and absolute discretion of the Company.
2.3.The Company shall receive Requests for Services from Clients. Client shall pay the Service Fee upon notification of the Company’s acceptance of Client’s request. The Company shall purchase the Goods on behalf of the Client. Goods will be delivered to the address provided by the Client, or delivered to pre-determined drop-off locations, as specified at the time of Request.
3.Character of Services; Provision of Services
3.1.The Company shall only provide the Services to the Client on condition that all requests are for lawful services and otherwise acceptable to the Company as determined at the sole and absolute discretion of the Company, in respect of the personal needs or wishes of the Client
3.2.The Company is authorized to act on instructions received from an Agreed User as if such instructions were received directly from the Client
3.3.The terms and conditions governing the provision of certain Services may be supplemented by additional agreements, which will be sent to Client upon requesting such Services. The provision of such Services will not commence until the Company receives any such agreement duly signed by the Client.
3.4.Acting in its sole and absolute discretion, the Company reserves the right, without liability hereunder at any time and from time to time to:
- 3.4.1.refuse to provide any Service requested; and/or
- 3.4.2.withdraw the continuation of any Service, provided that the Company informs the Client of any refusal or withdrawal as soon as reasonably practicable
4.1.The Company may subcontract with Vendors in procuring the Goods and/or completing the Services to be provided to the Client.
4.2.Where a Client requests the Company to purchase Goods on the Client’s behalf, the Client agrees that such Goods will be purchased by the Company as agent for the Client and accordingly any purchase agreement will be entered into between the Client and the relevant Vendor.
4.3.The Company may receive commissions or referral fees from Vendors as a result of a Client’s decision to use that Vendor and the Client agrees that the Company may retain such commissions and referral fees.
5.Cancellation of Service
5.1.The Company reserves the right, in its sole and absolute discretion, to cancel the Service of any Client at any time upon forty-eight (48) hours prior notice for any reason. Where the Company cancels the Service pursuant to this clause, it shall refund the balance of the Service Fee on an apportionment basis in respect of unused Service provided that all amounts due and owing to the Company by the Client have been paid in full.
5.2.Client is entitled to cancel Service by giving not less than forty-eight (48) hours’ notice. For the avoidance of doubt, if such notice is not received from the Client within such period, the Company may proceed to process payment of the Service Fee.
5.3.Vendors may impose their own terms and conditions in providing the Goods and Client shall comply with such terms and conditions. Unless otherwise agreed by the Vendor, a Client shall not be entitled to cancel any Service requested where, on a Client’s instructions, performance has already begun.
6.Liability and Limitation of Liability
The Company warrants that it will, at all times, exercise reasonable care and skill in providing the Services and, as far as reasonably practicable, such provision will be in accordance with the Client’s Request and instructions. The Company does not provide any recommendations or representations or offer any warranties, express or implied, including (and not by way of limitation because of specification) as to the quality, merchantability or fitness for a particular purpose or otherwise of the Goods, or the standard of Services supplied.
Client hereby acknowledges that Company shall not be liable to Client or any third party for acts or omissions relating to the resale or use of any Goods after such Goods have been delivered to Client. The Company merely purchases Goods as agent for the Client and any contract of the purchase or subsequent contract for resale will be entered into between the Client and the relevant third party or Vendor.
Client should note that the successful use of Vendors is always subject to availability and may change from time to time without notice. If any Vendor or Good becomes unavailable, the Company will use reasonable efforts to locate a substitute Vendor. The Company shall not be responsible for any actions of Vendors. The Company shall not be held responsible for missing or undelivered Goods. In the case of such missing or undelivered Goods, the Company shall, in its sole discretion, contact the Vendor and attempt to redeliver such Goods.
Client must solely rely upon his/her own judgment and discretion in selecting the Goods offered by any such Vendor and in entering into any agreements with such Vendor. Any Goods provided by the Vendor will be subject to the purchase agreement formed between the Client and the Vendor.
Any agreements that Client enters into with Vendors, either directly or through the Company as agent, are independent of and not connected to or subject to these Terms and Conditions. The Company disclaims any and all liability for any act or omission of any Vendor or any loss incurred by a Client as a result of any act or omission of a Vendor.
On occasion, the Company may be asked to make recommendations to Client. When making such recommendations, the Company shall endeavor to provide appropriate recommendations based on the Company’s understanding of Client’s desires. However, the Company makes no warranties or representations (express or implied) as to such recommendation and specifically, without limiting the foregoing, does not warrant that such recommendations are or will be accurate or that they will be to the Client’s satisfaction. Client must make and rely on his/her own inquiries in relation to such recommendations. The Company accepts no liability for any Goods or Services provided to a Client in the course of acting upon a recommendation and the Client hereby waives ay claim or right to assert a claim against the Company with respect thereto.
The Company, including its officers, directors, employees and affiliates shall not be responsible for, and hereby disclaims any and all liability for death or personal injury unless caused by the Company’s or such person’s gross negligence or willful misconduct.
Whether or not the Company has been advised of the possibility of such damages, the Company will not have any liability to the Client for any claim to the extent that such claim arises out of, is in connection with the Company’s Services, or can be characterized as a claim for:
- -loss of revenue or profits
- -loss of business opportunity or loss of contracts
- -loss of goodwill or injury to reputation
- -indirect, incidental, consequential, exemplary or special loss or damage; or
- -anticipated savings
The Company shall not be liable to the Client and will not be deemed to be in breach of these Terms and Conditions for any delay in performing, or failure to perform, the Services where such delay or failure is due to causes or events beyond the Company’s reasonable control.
Applicable law may not allow the limitation or liability as set forth in this Section of these Terms and Conditions so limitation of liability may not apply to you. IF ANY PART OF THIS LIMITATION OF LIABILITY IN SECTION IS FOUND TO BE INVALID, INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON THEN THE AGGREGATE LIABILITY OF THE COMPANY AND ITS AFFILIATES IN SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE GREATER OF TWO HUNDRED DOLLARS ($200.00) OR THE AGGREGRATE PAID BY THE CLIENT TO THE COMPANY WITH RESPECT TO THE TRANSACTION FOR WHICH SUCH LIABILITY IS CLAIMED, under all circumstances, Client is solely responsible for making his/her own arrangements for the payment or insurance of any excess loss.
7.1. The Company warrants that it will keep secret any confidential information that the Company possesses concerning the Client using a degree of care equal to the degree of care that the Company uses in connection with the treatment of its own confidential information, but in no event less than reasonable care. The Company will not, during the term of this Agreement or for any time after the termination or expiration of the Agreement copy, publish, use or disclose a Client’s confidential information except that such confidential information may be disclosed (i) to employees or Vendors on a need to know basis and as may be reasonably required in connection with the performance of the Company’s obligations under this Agreement, or (ii) in connection with the defense of any action; or (iii) as authorized by the Client or by this Agreement. If the Company is required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) to disclose any confidential information of the Client, the Company will reasonably cooperate with the Client and provide the Client with prompt notice of such request(s) as reasonably possible or so that the Client may seek an appropriate protective order.
7.2. The obligation at clause 7.1 shall continue during and after termination of the Services but shall cease to apply to information or knowledge which (i) has become public knowledge otherwise than through any unauthorized disclosure or other breach by the Company (ii) the Company lawfully receives from a third party without restriction on disclosure and without breach or nondisclosure obligation; or (iii) the Company knew prior to receiving or acquiring such information or develops such information independently.
9.1 Governing Law; Dispute Resolution; Choice of Venue. The Terms and Conditions are governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The Company and Client, subject to the arbitration provisions contained in this Section 9, hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the State of New Jersey, County of Essex for the purposes of adjudicating any matter arising from or in connection with this Agreement except, however, for those matters to be arbitrated.
Any dispute or controversy between the Client and Company arising out of, relating to, associated with these Terms and Conditions (and the terms and provisions contained therein), or the breach thereof, shall be submitted to and determined by arbitration in the State of New Jersey, County of Essex, pursuant to the rules then obtaining of the American Arbitration Association. The determination of the arbitrators shall be final binding and conclusive upon all parties and may be enforced not only in the courts of the State of New Jersey, County of Essex, to which jurisdiction the parties hereto agree to submit, but in any court of competent jurisdiction. Notwithstanding the foregoing, any party hereto may seek interim or provisional equitable relief in a court specified in this Section 9 prior to the commencement of an arbitration proceeding without waiving his right to demand or proceed to arbitration herein, in order to enjoin the breach or threatened breach of any of the terms and provisions hereunder.
The arbitrator or arbitrators sitting in any dispute or controversy arising hereunder shall not have the authority or the power to modify or alter any express condition or provision of these Terms and Conditions to render an award which by its terms, has the effect of altering or modifying any express condition or provision of this agreement, and the arbitrators’ failure to comply with this provision shall constitute grounds for vacating an award.
9.2 Revisions to Terms and Conditions. The Company may revise the Terms and Conditions from time to time and will notify Client in writing of any such revision. A Client’s continuing request for Services will indicate his acceptance of the revised Terms and Conditions in any event.
9.3 Feedback. Where Client wishes to raise any queries, concerns or complaints with the Company, Client should write the Company via the Online Contact Form located on the Website.
9.4 Severability. If any court of competent jurisdiction, arbitrator or arbitration panel finds any provision of these Terms and Conditions to be unenforceable, the remaining provisions shall be unimpaired and the unenforceable provision shall be reformed without further action by the parties and only to the extent necessary to make such provision valid and enforceable to achieve the like fundamental benefits, effect and economic intent of such provision.
9.5 No third party beneficiary rights. No person, firm, corporation, partnership, business, entity or business organization, except as specifically provided for herein, shall be deemed a third party beneficiary under this Agreement
9.6 Entire Agreement. The Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all agreements or understandings, whether written or oral, between the parties with respect to such subject matter. Any capitalized term used shall have the meanings set forth herein. No other right exists between the parties and none shall be implied from conduct or otherwise
9.7 Survival. Any provision of these Terms and Conditions which, by its nature, would survive termination or expiration of this agreement will survive any such termination or expiration of this agreement, including, but not limited to this Section and Sections 6 (Liability) and, 7 (Confidentiality).
9.8 Notices. All notices required or permitted under these Terms and Conditions shall be made in writing and, if to the Client, at the address listed in his application or to such other address as the client may specifically indicate to the Company in writing that all notices are to be sent: if to the Company, at its principal office or to such other location that the Company may indicate in writing from time to time.
9.9 Amendments must be in writing. Except as otherwise provided in Clause 9.2, the Company shall not be bound by any amendment, supplemented, cancellation or discharge of the Terms and Conditions except if the same is in writing and signed by an authorized officer of the Company
9.10 Waiver. All waivers of any of the Terms and Conditions by the Company must be in writing. Any delay or failure by the Company to exercise a right or privilege under the Terms and Conditions, or a partial or single exercise of that right or privilege shall not constitute a waiver of that or any other right or privilege.