Terms

1. Introduction

  • These Terms of Service are an agreement between you and GiftFlick PTY LTD ACN 17 612 322 139, and apply to your use and access our Service(s). By accessing or using our Service(s) you agree to these Terms of Service, which include our Privacy Policy. If you are using the Service on behalf of an entity, you warrant that you are authorised to accept these Terms of Service on the entity’s behalf and that the entity agrees to be responsible to GiftFlick. In these Terms of Service, 'us', 'we' and 'our' means GiftFlick™.
  • GiftFlick at any point may make changes to these Terms of Service for any reason. Such changes will be posted on our website.

2. Our Relationship

2.1 About us

  • Our Service allows a person/you “Gift Sender” to buy and send a product to another person(s) “Gift Recipient” from a participating online Retailers including a Retailers in an overseas jurisdiction permitted by GiftFlick. These Terms apply to you as a Gift Sender and or as a Gift Recipient.

2.2 Creating a Digital Gift

  • Online Retailers that offer our Service will allow consumers to digitally gift products that they sell. The Gift Sender will select a Product and use our Service to create a Digital Gift experience which can be shared with the Gift Recipient once the Order has been completed with the Retailer. GiftFlick does not collect or have any association with payments from the Gift Sender, other than make the sharable Digital Gift available to the Gift Sender once the order has been successfully completed. The Output of the Digital Gift from our service will be a video that may incorporate content made available by the Retailer, by Us, by a third party content provider or by you.
  • You acknowledge that we take no responsibility for the delivery, fulfilment, support of any good/services you may purchase in conjunction with using our Service on a Retailer website.

2.3 Sending a Digital Gift:

  • Once an Order has been completed, a link to the Digital Gift will be made available to the Gift Sender in one of the following ways; the Retailers website (eg Order confirmation Page), via email (sent by GiftFlick or the Retailer), via SMS or another electronic form by either GiftFlick or the Retailer. It is the sole responsibility of the Gift Sender to deliver the Digital Gift to the Gift Recipient. GiftFlick will not be held liable for any loss associated with the delivery of Digital Gift to the Gift Recipient(s).

2.4 Receiving a Digital Gift:

  • The Gift Recipient will receive the Digital Gift electronically and will be able to view the digital experience. The Digital Gift will be stored and made available to view to the Gift Recipient, the Gift Sender or anyone they share with for a period of 90 days. GiftFlick at its sole discretion reserves the right but does not have the obligation to disable the link for the Digital Gift without reason, at any point in time. The Service may notify the Gift Sender once the Digital Gift has been viewed either by email or another electronic communication form.

3. Privacy

  • We treat user privacy very seriously. Our Services allows, among other things, users to upload User Content which may contain personal content (e.g. photos, videos, information about themselves and others for whom they have the authority or permission to post such media or information) to be shared, sent, and/or posted both in public forums and through private sharing such as messaging. If you do not wish to have personal content viewable by others, you should not use the GiftFlick Services.
  • GiftFlick’s privacy policy is incorporated into these Terms of Service. Please see giftflick.com.au/privacy-policy. We recommend that you store a copy of these Terms of Service (including all policies) for your records. To the extent where there is an inconsistency between these Terms of Service and any incorporated policy, the incorporated policy will supersede these Terms of Service.

4. Eligibility and Limited user license for GiftFlick Services

  • You must be at least 16 years old to access and use the Service. You acknowledge you will comply with any application law and regulation, or third party requirements when accessing this Service, this includes but is not limited the minimum ages to purchase alcohol. You accept all risks of unauthorized access and use relating to your use of the Service and will notify us promptly if you discover or suspect any unauthorized access or use.
  • Subject to your strict compliance with these Terms of Service and except as otherwise expressly permitted by these Terms of Service or by GiftFlick, GiftFlick grants you a limited, personal, non-transferable, non-exclusive, revocable, non-commercial, non-assignable, license to download, view, and/or play the GiftFlick Digital Gift (excluding source and object code) for your personal, non-commercial use only, provided that:
    • You maintain all copyright and other proprietary notices contained in the GiftFlick Digital Gift or any copy you may make of the GiftFlick Digital Gift;
    • You do not use the GiftFlick Digital Gift in a manner that suggests an association with GiftFlick Digital Gift or any of its Licensors/Suppliers or any of their products, services, or brands;
    • You do not allow or aid any third party (whether or not for your benefit)
      • to copy or manipulate the code of any of the GiftFlick Digital Gift or Service or
      • reverse engineer, decompile, reverse assemble, modify, or attempt to discover any source code associated with any of the GiftFlick Services or other products or processes accessible through the GiftFlick Services; and
      • You do not insert any code or product to manipulate the GiftFlick Service or Digital Gift in any way that affects any user’s experience.
  • You agree that you will not:
    • use any data mining technology or automatic or manual process to monitor, mask, frame, extract data from, cache, copy, or distribute the GiftFlick Content or Digital Gift, and
    • modify, reproduce, frame , archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, circulate to any third party or on any third party web site, or otherwise use the GiftFlick Service in any way for any public or commercial purpose except as expressly permitted by these Terms of Service or by GiftFlick.
  • GiftFlick does not;
    • Enter into a partnership, joint venture, agency or employment relationship with you;
    • Determine if you are liable for any taxes;
    • Collect or pay any taxes on your behalf that may arise from your use of our Service, and
    • In relation to any Retailer; we do not guarantee or warrant;
      • the identity of the Retailer,
      • description of any good or service provided by the Retailer,
      • the quality of any good or service provided by the Retailer, and
      • the price of any good or service provided by the Retailer.

5. User Conduct and Content

  • All content we provide are exclusively for your personal use. Corporate or commercial use is prohibited. You are solely responsible for all User Content posted or distributed by you or through our Service, including any email messages, and for all your interactions with other users. Your commitment to this agreement is very important.
  • We want all our users to feel safe while using our services and so we ask that you act in a responsible way and use good judgment. Without limitation, you agree not to:
    • violate any applicable law or regulation;
    • submit or upload any material or content that conflict with any of your representations and warranties set forth in Section 11 of these Terms of Service;
    • infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity, and/or contractual rights;
    • use any content or information available through GiftFlick Services for any unauthorized purpose;
    • mislead users as to the features, functionality, origin, or capabilities of the Services;
    • interfere with or damage any of the GiftFlick Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing of electronic mail address information, or similar methods or technology;
    • use any of the GiftFlick Services to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information, or account numbers, or any defamatory materials of any kind, except where you have obtained express permission from such other person or entity in connection with any of the foregoing;
    • use any of the GiftFlick Services in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements;
    • harass any other user of the GiftFlick Services;
    • collect or store any information about any other user other than in the course of the permitted use of the GiftFlick Services;
    • use any of the GiftFlick Services for any commercial purpose whatsoever (including, without limitation, to research, advertise, market, promote, sell, or otherwise exploit any product or service);
    • sell or otherwise transfer any user information (e.g., user profiles) or other user’s User Materials); or
    • assist any third party in doing any of the foregoing.
  • In its sole discretion and without prior notice to you GiftFlick reserves the right to limit the amount of content and collaborative content you may send. This includes the number of recipients to whom you may send GiftFlick Digital Gift or content or collaborative content using our service.
  • GiftFlick reserves the right, without notice or explanation and at its sole discretion to review, remove or replace any provided User Content, or cancel any Digital Gift that includes User Content that it deems as: 1) potentially unlawful, inappropriate, offensive or otherwise objectionable or 2) infringing upon any trademark or copyright law. If GiftFlick determines, in its sole discretion, that you are in violation of any of the foregoing and/or are a repeat infringer of third party intellectual property rights, GiftFlick will terminate your account and/or membership, as the case may be, and prohibit you from creating new accounts through the GiftFlick Services.
  • GiftFlick takes no responsibility for any damage or harm resulting from your interactions with other users of the Giftflick Services.
  • By submitting to or posting User Content and creating a Digital Gift you agree:
    • you are not submitting any User Content that is subject to copyright law, and
    • you hereby grant to GiftFlick a non-exclusive, transferable, royalty-free, perpetual, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, translate, sell, create derivative works from, distribute, perform, and display the User Content, company name, location, and any other information you submit with the User Content, in connection with the Service.

6. Feedback

  • Any feedback you provide regarding GiftFlick or the Service will be treated as confidential information. We are free to use, disclose, reproduce, license, distribute, and exploit this feedback as we see fit without obligation or restriction of any kind.

7. Linked Website

  • Our Website may contain links to websites operated by third parties, including Retailers who list on our Website. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites or services offered, and have no control over or rights in those linked websites or services.

8. Intellectual property rights

  • Our website and all content on our website are the exclusive property of GiftFlick. The information on our website is for information purposes and are subject to change without notice. You must not copy, imitate, modify, alter or use without our prior written consent any URLS representing our website, or any of our content, logos, trademarks, slogans, graphics, icons or other content published on our website our through our Service.
  • All other third party trademarks, product names, and company names or logos mentioned or featured in the Service are the property of their respective owners.

9. Complaints and disputes

  • We aim to acknowledge receipt of all complaints within 5 business days and resolve all complaints within 21 days. If you wish to raise a dispute or submit a complaint to us, you should do so by contacting us using the details listed below. Disputes should be raised with us as soon as possible.
    Email: hello@giftflick.com.au

10. The Retailers Responsibilities

  • You acknowledge and understand that any value product issued in connection with the Service is issued by the Retailer. You agree that the Retailer is solely responsible for any and all Retailer Terms or other terms and conditions relating to Gifts.

11. Warranties and disclaimers

  • To the maximum extent permitted by law, including the ACL, we make no warranties or representations about this Website or the Content, including but not limited to warranties or representations that they will be complete, accurate or up-to-date, that access will be uninterrupted or error-free or free from viruses, or that this Website will be secure.
  • We reserve the right to restrict, suspend or terminate, at any time and without notice, your access to this Website or any Content, or restrict you from sharing Digital Gifts, and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
  • Under the ACL you may have certain rights which cannot be excluded. Nothing in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified.
  • To the extent permitted by law and without limiting the rights of you or a Customer under the ACL, if GiftFlick fails to comply with a statutory guarantee which by law may not be excluded, then to the extent the law permits GiftFlick to limit their liability in respect of such failure, the liability of GiftFlick is limited to the cost of the Service.

12. Restrictions

  • Unless expressly permitted in writing by us, you will not or not allow/permit any third party to do, any of the following in connection with the Service:
    • monitoring its availability, performance or functionality, or for any other benchmarking for competitive purposes;
    • decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, or algorithms of the Service or any part of the Service, except to the extent required by applicable law;
    • license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the GiftFlick Technology in any way;
    • modify or make derivative works based upon the Service or GiftFlick Technology;
    • embed the Service as an "iframe" or "frame" from within another application;
    • make the Service available over a network where it could be used by multiple devices at the same time;
    • impersonate or use the Service on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
    • remove, alter, or obscure any copyright, trademark, or other proprietary rights notice or labels on or in the Service;
    • use the Service in any way that could disrupt, negatively affect, or inhibit GiftFlicks users from fully enjoying the Service or that could damage, disable, overburden, or impair the functioning of the Service;
    • intimidate, stalk, threaten, harass other users of the Service (including using the Service to harass Gift Recipients by sending unwanted Digital Gifts;
    • violate on any Retailer rights, including, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;

13. Liability

  • To the maximum extent permitted by law, including the ACL, in no event shall GiftFlick be liable for any direct and indirect loss, damage or expense – irrespective of the manner in which it occurs – which may be suffered due to your use of our Service, Website and/or the information or materials contained on it, or as a result of the inaccessibility of this Website, Service, or supply of goods and services of Gifts listed on the Website, loss or damage arising from any breach of our Website or Service security including digital fraud or hacking and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up-to-date.
  • You will at all times indemnify, and keep indemnified, us and our directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of your conduct or breach of this Terms of Service.
  • You understand that all Gifts are supplied by third party Retailers and that GiftFlick has no liability for any act, omission or default, whether negligent or otherwise in relation to a Product supplied by a Retailer.

14. Collection notice

  • We collect personal information about you in order to provide you with our services, respond to enquiries, process your registration and for purposes otherwise set out in our Privacy Policy.
  • We may disclose that information to third parties that help us deliver our services (including technology suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, we may not be able to provide all of our services to you. We may also disclose your personal information to recipients that are located outside of Australia, including developers and other third parties in order to assist with investigating issues or providing you with the Service.
  • Our Privacy Policy explains: (i) how we store and use, and how you may access and correct your personal information; (ii) how you can lodge a complaint regarding the handling of your personal information; and (iii) how we will handle any complaint. If you would like any further information about our privacy policies or practices, please contact us at hello@giftflick.com.au
  • By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in the Privacy Policy and these Terms.

15. Force majeure

  • GiftFlick will not be liable for any delay or failure to perform its obligations pursuant to these terms if caused by circumstances beyond its reasonable control. Including but not limited to
    • acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, pandemics;
    • acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
    • industrial strikes.

16. System Outages

  • Access to our Service or our Websites may occasionally be unavailable or limited due to hardware or software failure or defects, overloading of system capacity, damage from natural events or disasters or disruptive human activity, interruption of power systems, labour shortages or stoppages, legal or regulatory restrictions as well as other causes outside of our control. To the extent permitted by law, GiftFlick will not be liable for any loss or damage which you may incur as a result of our Service or our Website being unavailable.

17. Indemnification

  • You will indemnify, and hold harmless GiftFlick and their respective Affiliates and their respective directors, officers, employees and agents from any and all liability, claims or causes of action (known or unknown) arising from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable legal fees, costs, penalties, interest, and disbursements) arising out of your breach of this Terms of Service, or your breach of any law or of the rights of a third party relating to your use of our Service(s) or Website; and as a direct or indirect consequence of unauthorised users accessing your account as a result of your negligence

18. Jurisdiction and governing law

  • Your use of the Website, our Service and these Terms are governed by the law of Victoria and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria. If any part of these terms of use is found to be invalid or unenforceable, it shall be severed without affecting the remainder.

19. Definitions

  • Terms of Service means this agreement which is between you and GiftFlick PTY LTD ACN 17 612 322 139
  • Service(s) means the GiftFlick technology that allows users create, send and receive a Digital Gift as described in Section 5
  • User Content means any electronic content submitted by the user which may include photos, videos, audio, text.
  • User means any person who uses the Service
  • Retailer means an online or in-store merchant where GiftFlicks Services can be accessed or used by a User.
  • Gifts means a physical or digital good or product sold or made available by a Retailer.
  • Digital Gift means the Video created by the Gift Sender using the GiftFlick software or Service
  • Gift Sender means a user that is creating and or sending a Digital Gift to another person.
  • Gift Recipient or Gift Receiver means a user that has received a Digital Gift from a Gift Sender or another person
  • Product has the same meaning as Gift.
  • Order means a completed transaction with the Retailer
  • Website means the GiftFlick Website located at: www.giftflick.com.au; www.giftflick.net; www.giftflick.co.uk; www.giftflick.me
  • ACL mean Australian Consumer Law