General Client Terms and Conditions of Corporategift.com, Inc.##Corporategift.com is a budget based gifting marketplace powered by a robust platform. Corporategift provides its Services (as defined below) to Client through the Corporategift Website, subject to these General Terms. These General Terms apply to all use of the Services by Client. Other general terms are not applicable to the Agreement, unless the Parties have agreed to the applicability explicitly in writing. By signing or otherwise accepting the Agreement or by accepting the Agreement as part of an electronic subscription or contract process (e.g. by clicking “I agree”) you accept these General Terms and agree to abide by them.##These General Terms and Conditions shall apply to Entrepreneur Tier, mutatis mutandis.##Definition of terms##In the Agreement and these General Client Terms and Conditions (“General Terms”):##“Corporategift” or “CG” means Corporategift.com, Inc., a New Jersey corporation with its principal business address at 4 Washington St. Tenafly, NJ 07670.##“Agreement” means the Master Service Agreement between Corporategift and Client regarding the use of the Services by Client.##“Client” means a corporate who has signed the Agreement.##“Client Content” means the content provided by Client in connection with the Corporategift Service. Such content may include profile information, photographs, data, information, feedback, suggestions, text, content and other materials that is uploaded, posted, delivered, provided or otherwise transmitted or stored in connection with or relating to the Corporategift Service.##“Personal Data” means any data or information that relates to an identified or identifiable individual – as defined in any applicable Data Protection Legislation, including any data privacy laws in the U.S. or in any other country which applies to the Services. ##“Platform” or “Corporategift Service” means the Corporategift Website located at Corporategift.com. Any new features added to the Corporategift Service are also subject to this Agreement. ##“Products” means gifts, promotional or branded items, or any other product displayed on Corporategift's online store as configured to Client.##"Services" means the services provided by Corporategift to Client. ##“User” means a natural person authorized by Client to order Products through the Corporategift Service.##“User Delivery Fee” means the fee that Corporategift charges from the Client for delivery service that Corporategift provides to the Client.##1. Rights and responsibilities of Corporategift##1.1 Corporategift acts as the Client’s marketplace and corporate gifting platform through which the Client has a one stop solution for all of its corporate gifting needs. Client makes a commitment to an elected budget tier (or in the case of entrepreneur tier, Client’s discretionary pre-charge), by executing and delivering to Corporategift a purchase order in the amount of the elected tier (the executed purchase order (or pre-charge, as the case may be) shall be referred herein as “the Committed Budget”). The Committed Budget, if used, enables Client to use the Platform during the Term free of charge. It is clarified that if Client uses the entire Committed Budget for the purchase of Products during the Term, there are no additional platform fees, and the entire Committed Budget is used for the purchase of Products.##1.2 Corporategift shall set-up its web-based, online store, according to Client's specifications, including Client's name, available products and Client users who may have access to the Platform, as requested by Client. At any time during the Term of this Agreement, Client may request to add or remove Products from the online store. ##In addition, Client may stock items in the online store that are not provided by Corporategift, and in such case the Parties shall agree to a fee per item which shall be paid per such non-Corporategift procured products purchased on the Platform.##1.3 Platform Customization. Corporategift may customize the Platform according to Client’s specifications. Client may have a pool of development hours invested by Corporategift for such customization, such pool and its size is pending on Client’s Committed Budget Tier. Any development hours in excess of the applicable pool shall be charged at Corporategift’s standard rates, as may be updated from time to time (the “Excessive Platform Development”).##1.4 Client has access online to real-time updated sales report. The Client shall notify Corporategift of any possible shortcomings or errors in the report within three (3) months of the date of such shortcoming or error. Absence of notification within said period shall be deemed Client's final acceptance of the report on a rolling 3 month basis.##1.5 Client hereby grants Corporategift a non-exclusive, non-transferable, revocable worldwide license to use the name, logo, and trademark of the Client solely and directly in connection with (a) the sale, marketing and distribution of Products, during the Term of the Agreement, and (b) Corporategift's marketing material, including Corporategift's website and distributable marketing material. Any and all uses of Client’s marks shall be only of the specific marks designated by Client in the required font, color, and style. Client is and will remain the sole owner of its marks.##1.6 Corporategift may update the prices, description, availability or any other update relating to the Products at its sole and absolute discretion, with immediate effect, without having to notify Client of any such update.##2. Procurement, Stock and Warehouse ##2.1 Under the Service, Client shall configure Users and hereby authorizes Corporategift to receive orders from its Users and to charge the Client for such orders.##2.2 Client shall procure Products from Corporategift as follows:##2.2.1 Client shall identify those promotional branded products that it wishes Corporategift to procure for placement in the Webstore;##2.2.2 Corporategift shall procure a sample of such Product and submit such sample Product or virtual mockup to Client for approval;## 2.2.3 Client shall direct Corporategift to order inventory; if Inventory add on is paid by client ##2.2.4 Product will be shipped directly to the warehouse location designated by Corporategift.##2.3 All stocked items will be stored at Corporategift’s contracted distribution center designated storehouse by Corporategift. Corporategift reserves the right to update Products and Product specifications. Updates may include but are not limited to: Product description, adding new Products, removing old Products, color or size changes, and pricing changes. ##Stocked inventory will be procured by Corporategift upon written approval from Client. Corporategift will manage the inventory levels.##2.4 Client may request for any warehoused Product that it will bear Client's brand on it, and Corporategift will make reasonable commercial efforts to accommodate such request. Notwithstanding anything to the contrary.##2.5 If the Client desires to stock items in the web-store that are not provided by Corporategift, Corporategift will assess a fee of $5.00 per item for non-Corporategift procured Webstore promotional products.##2.6 Slow moving Product is defined as a Product that has less than two (2) inventory turns on an annual basis. After a three (3) month period, if the Products are still under-performing, Client agrees to pay for such merchandise and retrieve the Products from Corporategift’s distribution center within fifteen (15) days. Alternate forms of disposition of slow-moving Products may be mutually agreed upon by both parties. Any shipping and stocking costs associated with the disposition of slow-moving Products will be at Client’s expense.##2.7 Any change by Client which requires discontinuation of a product from the program will be considered obsolescent. Logo changes constitute immediate obsolescence. After a run-off period, not to exceed three (3) months, Client agrees to retrieve obsolete inventory from Corporategift’s distribution center within fifteen (15) business days. Alternate forms of disposition of obsolete inventory will be mutually agreed upon by both parties. Corporategift will invoice Client reasonable shipping and stocking cost to transport the goods to a destination (FOB Warehouse) and via a shipping method specified by the Client, and Corporategift agrees to so deliver such discontinued or slow-moving items to such destination.##2.8 Within 30 days of the expiration of the Subscription hereof or in the event that this Agreement is terminated at any time by either party, Corporategift shall ship all Products remaining in inventory of Client to the place designated by the Client (FOB Warehouse) via a shipping method specified and pre-paid by the Client.##3. Rights and responsibilities of the Client##3.3 All rights in and to the Corporategift Service, the Client App and its components will remain with and belong exclusively to Corporategift. The Client shall not (and shall not allow any third party) to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any software. Corporategift does not grant any license or right to use any trademark of Corporategift other than in connection with the Services. Client shall comply with any notices regarding the use Corporategift publishes in connection with the Corporategift Service. The Client agrees not to use the Corporategift Service for the purpose of developing a competing product or service. ##3.4 The Client shall keep all its account information confidential and is responsible for all activities that occur under its account. Corporategift shall have remote control over the Client's account. Corporategift reserves the right to access the account of the Client in order to provide technical support or updates. Corporategift may provide technical support services, through email or otherwise, in accordance with standard practice. ##3.5 The Client shall comply with (i) any and all applicable regulations relating to alcohol and tobacco or other relevant food and consumer regulation in all their actions and communications through the Corporategift Service, including but not limited to sale to under aged persons, and (ii) all applicable data protection rules and regulation. ##3.6 The Client warrants that the Client owns all the Client trademarks and tradenames, and the Client's trademarks or tradenames that the Client requests to print on the Products do not and will not violate, infringe, or misappropriate any third party's personal or proprietary rights.##4. Price, Payment and Taxes##4.1 In consideration for the use of the Corporategift Platform during the Term, Client can pay Corporategift an amount equal to the Committed Budget,if the Committed Budget is not entirely used during the Term, the Platform anuall Cost indicated in the Master Agreement. The foregoing notwithstanding, if Client elects SMB tier, Client shall pay CorporateGift an amount equal to the Committed Budget plus the Platform Monthly Cost. ## ## ##4.2 Upon actual receipt of payment by Corporategift, according to the agreed upon payment terms, including agreed upon line of credit (applicable for Professional and Enterprise tier Clients), Client shall receive a Client account allowance in the amount of such payment for the purchase of Products (“the CG Credits”).##4.3 Any payment not received by Corporategift on or prior to its agreed due date shall bear interest from the due date until actual payment at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; and (ii) the maximum rate permitted under applicable Law. ##4.4 Client may top-up the CG Credits at anytime and in any amount by actual payment to the Client account. Corporategift values the Client's undertaking for a Committed Budget in advance, and it is therefore clarified, that top-up of the CG Credits shall not upgrade the Committed Budget tier of Client, regardless of the top-up amount.##4.5 In addition, Client shall pay Coporategift for the Excessive Platform Development according to an invoice issued by Coprorategift to Client from time to time.##4.6 The payments set forth in Section 4 above include all taxes, including VAT. All payments shall be made without offset for any amount that may be required to be withheld under the regulations promulgated by any governmental taxing authority.##5. Term and Termination##5.1 The term of the Agreement is 12 months, renewable for recurring 12 month periods (each "a Term"), provided that by no later than 30 days prior to the expiration of a Term, Client shall execute and deliver a purchase order for additional Term. ##5.2 Upon renewal of a Term, Client may drag up to 15% of Client's Committed Budget during a Term to the next Term. ##5.3 Upon termination of this Agreement, Client may use up to 15% of only the Committed Budget which was not used during the preceding Term, for a period of 6 months from the date of such termination.##5.4 Termination For Non-Payment: Corporategift may terminate this Agreement prior to the expiration of its Term if Client fails to make any payment on account of the Committed Budget or the Monthly Platform Cost (if applicable) according to the agreed payment terms. Upon such termination, Corporategift may block access of Client or Client Users to the Platform.##5.5 All accrued rights to payment and the relevant terms of these General Terms shall survive the termination of the Agreement.##6. Quality of the Services##6.1 Corporategift shall observe the care of a prudent service provider. However, the Corporategift Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Corporategift or by third-party providers, or because of causes beyond the reasonable control of Corporategift. ##6.2 The Services, including the Corporategift Service are provided on an "as-is" and "as available" basis. Corporategift does not warrant that the Services will be uninterrupted, timely, secure, error-free or virus-free, nor does it make any warranty as to the results that may be obtained from use of the Services, and the information obtained by the Client from the use of the Services. The Client understands and accepts that Corporategift may develop the Corporategift Service and that Client may get new features or the existing features may develop during the time the Agreement is valid.##6.3 If there are any defects in the Products, the Client may contact the customer service of Corporategift, acting on behalf of Corporategift’s affiliate vendor-partners, through the Platform’s customer support chat or at customer.service@corporategift.com. ##6.4 Corporategift shall use its best efforts and be responsible for all handling and fulfilling of Product orders including counseling by a customer service team, who shall be available via the customer service telephone number and email from 9:00 AM to 6:00 PM (Eastern Time) on regular business days except for Rosh Hashanah and Yom Kippur.Corporategift shall also provide warehouse storage space allocation, inventory control, monitoring and fulfillment services. Corporategift shall also provide features as described in Exhibit B. ##6.5 Ownership Rights ##All results of any duties performed under this Agreement, including without limitation any and all Platform and feature designs, tailor-made Platform development for Client (including Excessive Platform Development), documentation, know-how, trade secrets, inventions (whether or not patentable or reduced to practice), improvements, software, research, works of authorship, ideas, patterns, procedures, processes, developments, materials, data, copyrights, trademarks, trade names, services marks, domain names, and all confidential information that Agent makes, conceives, supervises or devises, either solely or jointly, as a result of services performed (whether or not such services are completed) (collectively, the “Work Product”), shall be deemed to be a work made for hire and made in the course of the services rendered hereunder. All right, title, and interest in and to the Work Product shall vest in GC, and Client shall have no right, title, or interest in or to such Work Product. To the extent that title to any Work Product may not, by operation of law, vest in the Client or such Work Product may not be considered work made for hire, all rights, title and interest therein are hereby irrevocably assigned to GC. All Work Product shall belong exclusively to GC, with GC having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Client agrees to give the Company and any person designated by the Company, reasonable assistance, at the Client’ expense, required to perfect the rights. Upon the termination or expiration of this Agreement, Client shall promptly deliver to GC all materials produced by, or under the supervision of, Client, as well as all other documents and other materials of GC then in the possession or under the control of Client. “Trade Secrets” may include Confidential Information and actions as may be required to qualify to do business under all applicable federal, state and local laws in order to perform the services contemplated by this Agreement on behalf of GC, and Client shall comply with all other provisions of this Agreement or applicable law which prescribe the duties and responsibilities or proscribe the activities or conduct of Client.##7. Personal Data##7.1. Client acknowledges that in order to allow Corporategift to provide the Services, Client shall be required to provide Corporategift with Personal Data, and Corporategift will store and process such Personal Data in order to provide Client with the Services.##7.2. Client has the sole and exclusive ownership and control of the Customer Data, including all Intellectual Property Rights and Personal Data related thereto. Client hereby grants to Corporategift, during the term of this Agreement, a non-exclusive, worldwide, fully paid up and royalty free license to use, copy, store and display the Personal Data solely to the extent necessary to provide Client with the Services.##7.3. Corporategift will not (i) share, publish, post, sell or otherwise transfer the Personal Data to any third party, or (ii) sell, rent or lease any Personal Data to third parties, without receiving Client's prior explicit consent.##7.4. Notwithstanding anything to the contrary herein express or implied, Corporategift may utilize Personal Data to anonymously aggregate, publish or otherwise make known performance benchmarks or other data metrics about the use of the Services, and such use is an integral part of the Services ordered by Client under this Agreement.##7.5. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all Personal Data.##7.6. Corporategift will make no effort to validate any of the Personal Data for correctness or usability. Corporategift shall not be responsible or liable for the deletion, correction, destruction, damage, loss and/or failure to store any Personal Data.##7.7. Client agrees that Corporategift has no obligation to retain any Personal Data provided to Corporategift, except as necessary for the provision of the Services, nor to provide or return to Client upon termination of this Agreement any data, including Personal Data, provided by Client to Corporategift during the Term.##8. Limitation of Liability##8.1 The Corporategift Service may at any time be interrupted or temporarily suspended. Do not use the Corporategift Service for backing up any data.##8.2 Corporategift has affiliate vendor-partners which manufacture and provide the Products to Client. The Corporategift affiliate vendor-partners are committed to manufacture and provide the Products in accordance with the specifications described, and within the time shown, on the Corporategift Service. ##8.3 The Corporategift affiliate vendor-partners is solely liable for any defects in the Products or other shortcomings in the delivery of the Products. Client hereby waives and releases Corporategift from any liability relating to discrepancies between representations made by the vendor-partners on Corporategift web-store and the actual Products received by the Client.##8.4 Client may activate automated gifting features on the platform. Client hereby waives and releases Corporategift of any loss caused to Client from using the Corporategift automated gifting feature. ##8.5 CORPORATEGIFT'S OBLIGATIONS UNDER THIS AGREEMENT, THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY PRODUCT WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE, AS CORPORATEGIFT MAY DETERMINE IN ITS SOLE DISCRETION. CORPORATEGIFT SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAYS IN PERFORMANCE AND, EXCEPT FOR EACH PARTY’S OBLIGATIONS AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY UNDER THE PROGRAM, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO CORPORATEGIFT FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY’S LIABILITY TO SUCH PARTY UNDER THE PROGRAM EXTEND TO INCLUDE INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH AND HOWEVER CAUSED. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use or revenue, costs of procuring substitute goods or services, or the cost of capital or loss of damage to property or equipment. It is expressly understood that any technical advice furnished by Coeporategift with respect to the use of the Products is given without warranty, and Corporategift assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Client’s risk. This exclusion also includes any liability that may arise out of any third-party claims against Client.##9. Indemnification##9.1 Client agrees to indemnify and hold harmless from and against, any and all claims, suits, damages, losses, costs or expenses, including reasonable attorneys’ fees and any amounts paid in settlement, suffered by Corporategift arising out of or incurred in connection with any claim, action, suit or proceeding brought against Corporategift for infringement of any trademark, trade name or other proprietary right of a third party in connection with the performance by Corporategift of its obligations hereunder with the exception of customized orders placed by Client Customers using its trademark, tradename or other proprietary mark.##9.2 Corporategift agrees to indemnify and hold harmless Client, its officers, directors, shareholders, employees and agents, and its respective successors and assigns, against any cause of action, loss, liability, damage, cost or expense of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorney's fees and costs (whether or not suit is brought), arising out of or relating to a breach of any of its representations, warranties or covenants in this Agreement, any grossly negligent act or omission committed in the course of the services hereunder, or any misrepresentation it makes during the course of the services hereunder. This indemnification obligation shall survive any termination of this Agreement.##10. Assignment ##Corporategift may assign this Agreement to a third party that succeeds to all or substantially all of such party’s business or assets, whether by sale, merger, operation of law or otherwise; provided that such assignee or transferee agrees in writing to be bound by the terms and conditions of this Agreement. Corporategift will provide prior written notice to the Client of such event consistent with its obligations to such third party. No other assignment by either party is permitted hereunder, without the written consent of the other party, which consent shall not unreasonably be withheld or delayed. Upon a permitted assignment of this Agreement by a party, all references herein to such party shall be deemed to be a reference to the permitted assignee. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.##11. Notices ##Notices shall be effective hereunder when and only when they are reduced to writing and delivered, by next day delivery service, with proof of delivery, or mailed by certified or registered mail, return receipt requested, to the appropriate party at its address stated below or to such person and at such address as may be designated by notice hereunder. Notices shall be deemed given on the date delivered or date of attempted delivery, if service is refused.##12. Governing Law ##This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of New Jersey. All parties to this Agreement consent to the jurisdiction of a state or federal court in the State and County of New Jersey in connection with any dispute arising hereunder.
