Last Updated: September 4, 2018
ThankYouKindly, Inc. (“TYK,” “us,” “we,” or “our”) has created an online software platform that allows users to purchase and send gifts curated by TYK to the recipient of your choosing (the “TYK Platform”). These Terms of Service (“Terms”) govern the use of: (i) the TYK Platform, (which includes any and all underlying software and technology); and (ii) the websites owned or operated by TYK, including the website located at www.thankyoukind.ly (“TYK Website”); and (iii) any other TYK products and/or services made available or provided by TYK in connection with the foregoing and under these Terms (clauses (i)-(iii) collectively referred to as, the “TYK Service”). You must accept these terms to create an account for the TYK Service and if you do not have an account you accept these terms by using and accessing the TYK Website as set forth below in Section 1.1.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, OR IF YOU DO NOT HAVE AUTHORITY OR MEET THE ELIGIBILITY REQUIREMENTS AS SET FORTH IN SECTIONS 1.1 AND 1.2 BELOW, DO NOT CLICK “I ACCEPT,” DO NOT CREATE AN ACCOUNT, DO NOT USE THE TYK SERVICE OR VISIT THE TYK WEBSITE.
1. Acceptance of Terms and Eligibility
1.2. Eligibility. You may use the TYK Service if you are over eighteen (18) years of age and are not barred from receiving services under applicable law. By accessing or using the TYK Service you affirm that you are over the age of eighteen (18) and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms, and to abide by and comply with the Terms. If for any reason, we, in our sole discretion, believe you do not meet the eligibility requirements set forth above, we reserve the right, without provision of any notice to you to terminate your account and these Terms. If you do not meet the eligibility requirements as set forth in this Section, we have no obligations to you under the Terms.
2. Access and Use of the TYK Service
2.1. Creating an Account. In order to access and use the TYK Service you must create and register a user account. In registering a user account for the TYK Service, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create a user account using a false identity or information, (b) create a user account or use the TYK Service if you have been previously removed or banned by us from use of the TYK Service. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your user account. You are solely responsible for any activity originating from your user account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your user account.
2.2. Authorized Use of the TYK Service. Subject to the terms and conditions of these Terms, including payment of applicable fees, TYK grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (i) access and use the TYK Website and the the TYK Platform; and (ii) view the TYK Content (defined below in Section 6), in each case solely for your personal, non-commercial use and enjoyment.
2.3. Prohibited Use of the TYK Service. Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the TYK Service: (i) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that TYK provides to you or any other part of the TYK Service; (ii) gain, or attempt to gain, unauthorized access to any servers, computer systems or databases utilized in connection with the TYK Service; (iii) circumvent any technological measure implemented by TYK or any of TYK’s providers or any other third party to protect the TYK Service or TYK Content; (iv) disable, overload, or impair the infrastructure or proper functioning of the TYK Service; (v) access, or attempt to access, the TYK Service using automated means (such as harvesting bots, robots, spiders, or scrapers); or (vi) copy, reproduce, modify, use, display, mirror or frame the TYK Service or any individual element within the TYK Service, the TYK Content, TYK’s name, any TYK trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without TYK’s express written consent.
2.4. Third-Party Products and Services. You acknowledge that the TYK Service may enable or assist you to access, interact with, and/or purchase products, services, applications, or websites made available by third parties through the TYK Service (“Third-Party Services”). When you access the Third-Party Services, you do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not TYK. TYK makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.
3. Purchases, Campaigns, Subscriptions & Payment Terms
3.1. One-time Gift Purchases. For one-time purchases of a gift or gifts, upon final approval and confirmation of the gifts to be sent to your recipients, you agree to pay the fees set forth in the electronic purchase order or approval/confirmation form submitted through the user interface of the TYK Platform (each, a “Confirmation Form”). TYK shall not be required to complete delivery of the gift, or provide any further services until TYK has received payment in full the applicable gift(s) and any fees for services provided in connection therewith.
3.2. Campaigns. You may run a gifting campaign (“Campaign”) subject to you and TYK mutually executing a campaign commitment form (“Campaign Commitment Form”) setting forth the scope, details and any additional terms and conditions related to the Campaign. Unless otherwise set forth on the applicable Campaign Commitment Form, all fees for the Campaign shall be due and payable in accordance with the Confirmation Form. TYK shall not be required to complete delivery of any gifts, launch or execute the Campaign or provide any further services until TYK has received payment in full the applicable Campaign and any fees for services provided in connection therewith.
3.3. Subscriptions. We offer a paid subscription service to access the TYK Service which are available on monthly and yearly subscription plans. Each paid subscriber has a monthly gift balance. These subscription balances can transfer over from month to month. We will deduct from your balance the cost of the gift(s) you choose for your recipient. If the full cost of the gift chosen by you is not covered by your then-current subscription balance, you will be required to pay the remaining balance before the gift will be delivered to your recipient. If you have purchased a subscription for the TYK Service, you shall pay to TYK the fees specified in the Confirmation Form submitted by you to TYK for the applicable subscription tier. Unless otherwise set forth on the Confirmation Form, the subscription fees will remain fixed during the subscription term unless you (i) exceed the permitted number of gifts under your subscription or your current subscription balance, (ii) upgrade your subscription, or (iii) subscribe to additional features or products. In the event a price change applies to you, you will be charged at the start of the next billing period of your current subscription term in accordance with the appropriate price structure. Subscriptions shall automatically renew following the end of each subscription term set forth on the Confirmation Form at TYK’s then-current pricing for your then-existing subscription, unless you provide TYK written notice of non-renewal or termination to TYK at email@example.com, prior to the expiration of your then-current subscription term. For more information regarding TYK’s subscriptions, including pricing, please see our subscriptions page located here www.thankyoukind.ly/plans.
3.4. Payment Terms. Unless otherwise set forth on the applicable Confirmation Form or Campaign Commitment Form, as applicable, all fees are due and payable upon submission of the Confirmation Order. TYK may increase the amount of fees and rates payable by you upon written notice to you, provided that any such increase shall not be more than once in any twelve (12) month period. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on TYK’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the TYK Service, or performance of any services by TYK. All fees are non-refundable and non-returnable.
4. Obligations; Feedback; Changes; Project Completion
4.1. Your Obligations. You agree to work expeditiously with TYK to complete the delivery of the gift(s) and/or Campaign by the completion date specified in the Confirmation Form or as otherwise provided in the user interface of the TYK Platform. TYK will promptly notify you of any delay or anticipated delay in the performance of services, the reasons for the delay and the actions being taken by TYK to overcome or mitigate the delays.
4.2. Gift Feedback. If you do not provide timely feedback, information and approvals or otherwise delay the completion of the gift giving within the applicable deadline, you may be required to pay an additional delay fee. The delay fee is a retainer to hold TYK’s services. The fee will be enforced if the delay is longer than two weeks and can be used no more than two times. The fee will be proportional to the cost to TYK to hold the services of the contractors and employees past the date invoiced for delivery. This will include and is not limited to, any overtime or rush fees that will be necessary to ensure that the project is completed in a timely manner. If either you do not pay the fee or if the delay is longer than two weeks or is invoked more than twice you will be deemed in breach of these Term.
4.3. Changes to Your Order. You may from time to time request changes to the gifts ordered/purchased by you (including, but not limited to changes in the specifications) or a Campaign by issuing a written request to TYK. If you make a request via e-mail, this will be considered a written request. All verbal requests require the follow up of a written correspondence between your point person for communication with TYK and TYK. TYK will promptly respond in writing to any such request for changes, stating how such proposed modifications to the order/purchase and/or Campaign will affect the time and/or materials required for TYK to carry out the delivery of the gift(s) and/or Campaign with the requested changes, as well as any proposed equitable adjustment in the fees hereunder. If You agree in writing to the new estimates, the applicable Confirmation Form will automatically be deemed amended to incorporate the agreed-upon revisions to the gifts, and/or Campaign and/or fees. You must pay the additional fees in full before TYK will continue provided any services.
4.4. Additional Fees. TYK goes through a multistep process to create your perfect gift. Each round of work builds upon the previous round of work. Once that round of work is completed any work necessary to change the previous round will subject the gift’s estimated completion time to be changed. Additionally, TYK reserves the right to charge an additional fee for each revision to a previous round or for any additional rounds.
4.5. Project Completion. When TYK determines the gift is complete, a confirmation email will be sent by TYK to you or you will otherwise be notified through the user interface of the TYK Platform.
5.1. Selecting a Delivery Date. Deliveries are available only on the days that can be selected in the calendar provided through the TYK Platform. If you cannot choose a delivery date of your choice, it means a delivery is not possible on that day. Please contact our customer service team if you need any suggestions on any other gifts that may be available for your choice day.
5.2. Timing of Deliveries. Deliveries via courier services cannot be delivered at specific times. All orders will be delivered during the working day between 10am to 7pm (in the recipient time zone) during normal days (exceptions are such high gifting days like Valentine’s Day, Mother’s Day, etc. during which deliveries can happen beyond this time range).
5.3. Delays in Deliveries. To avoid problems or delays with delivery, please ensure that you have provided with the full address details, including accurate postcode of the recipient and telephone number so that it would be easy for our delivery services to locate them. It would also be very helpful if you provide us with your daytime contact telephone number or e-mail address so that we can notify you in the event that any delivery problems are encountered.
5.4. TYK Obligations. Whilst we agree to use all reasonable endeavors to ensure that delivery will be on the requested delivery date or during the delivery period, you acknowledge that actual delivery will be via a third party courier service. In very occasional circumstances delivery on the requested terms will not be possible, in such circumstances you will be given prior notice wherever possible and we shall either make alternative arrangements or refund your payment in full in accordance with clause mentioned above.
5.5. Third Party Acceptance of Deliveries. We do not recommend courier deliveries to hospitals or funerals. In the case of delivery to certain locations, where a third party is involved, such as offices, hospitals, Funeral Directors, airports, hotels, ships and other business locations, the signature of any person authorized to accept delivery on behalf of the organization shall be accepted as proof of delivery to your chosen recipient.
5.6. Failure to Receive or Accept Deliveries. Please be aware that the carrier/courier will deliver the goods to the address provided in good faith and we cannot accept responsibility if the intended recipient is no longer at that address and the receiver refuses or fails to return the items. Please note that where the carrier is unable to find someone to accept delivery, or unable to leave the delivery in a secure location, they will leave a card at the address for the recipient to make contact and re-arrange delivery. If the recipient fails to make contact in good time we reserve the right to charge for re-delivery to that or an alternative address.
5.7. Orders and Deliveries of Alcoholic Beverages. Some of the gift options that may be sent to the recipients contain alcoholic beverage products. You must be an adult (21 years or older) to place a request for an order for a gift that contains an alcoholic beverage, which we will then forward to our designated licensed retailer or winery for acceptance, sale and processing of your order. Similarly, the recipient of your wine product order must be 21 years or older to accept delivery. The shipping carrier shall require identification, age verification and signature of an adult at the time of delivery. By placing your request for a gift containing an alcoholic beverage you certify under penalty of law that you and the intended recipient are at least 21 years old. Any willful misrepresentation of your, or the recipient's age, in order to unlawfully obtain alcoholic beverage is a crime and TYK will cooperate with authorities to prosecute you and the recipient to the fullest extent of the law.
6. TYK’s Rights. TYK and its suppliers retain all right, title and interest in and to (i) the TYK Service, (ii) any and all software made available or a part of the TYK Service, including, without limitation, the TYK Platform and its underlying technology, and (iii) any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the TYK Service (“TYK Content”). TYK reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by TYK. The TYK Content, TYK Website, TYK Platform and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the TYK Website or TYK Platform. TYK shall be entitled to unrestricted use of any and all comments, suggestions, ideas, notes, drawings, concepts, problems or other information with respect to the TYK Service or TYK Content disclosed or offered by you to us (collectively, “Feedback”). We may use the Feedback for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation of the Feedback.
7. Cancellation/Termination. If, for any reason, you wish to change or cancel your order, or terminate your subscription, you can do so by calling (650) 746-4654 or emailing us at firstname.lastname@example.org. Notwithstanding the foregoing, if TYK has already processed or begun preparation on your order,TYK will not be able to cancel the order.We regret that you may not cancel an order once your order is shipped/dispatched. We reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you, for any violation or breach of these Terms, violation of any applicable law or is harmful to the interests of another user, customer, recipient, subscriber, a third-party provider, merchant, sponsor, licensor, content or service provider, or TYK or its affiliates. The following Sections shall survive any termination or expiration of these Terms: 1, 2.1, 2.3, 2.4, 2.5, 3.4 and 6-14.
8. Indemnity. You will indemnify and hold harmless TYK and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the TYK Service, or (ii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
9. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE TYK SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TYK EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TYK SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT THE TYK SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE TYK SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TYK OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.
10. Limitation of Liability. NEITHER TYK, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE TYK SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE TYK SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TYK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL TYK’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE TYK SERVICE EXCEED (I) THE AMOUNTS YOU HAVE ACTUALLY PAID TO TYK FOR USE OF THE TYK SERVICE OR (II) ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENT OR DO NOT HAVE ANY PAYMENT OBLIGATIONS TO TYK, AS APPLICABLE.
11. Application of Limitations and Disclaimers toConsumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in the Sections 9 and 10 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such consumer is located.
12. Basis Bargain. The warranty disclaimer and limitation of liability set forth above in Section 9 and 10 are fundamental elements of the basis of the agreement between TYK and Client. TYK would not be able to provide the TYK Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of TYK’s suppliers.
13. Publicity. TYK may refer generally to the existence of these Terms and use the Client’s name in press releases, on web sites, and other promotional material, but will not reveal any non-public and proprietary information designated “confidential” in writing by Client.
14. Availability of the TYK Service. Information describing the TYK Service is accessible worldwide but this does not mean the TYK Service or certain portions thereof are available in your country. We may restrict access to the TYK Service or portions thereof in certain countries. It is your responsibility to make sure that your use of the TYK Service is legal in your country of residence. The TYK Service may not be available in all languages.
15. Changes to these Terms and the TYK Service. TYK reserves the right, at any time, to change the terms and conditions of these Terms in its sole discretion including, but not limited to, the fees and charges associated with the use of the TYK Service. If we do so, we will post the updated Terms of Service on the TYK Website or through the user interface of the TYK Platform, however, we will notify you by email (to your designated email) of any changes that, in our sole discretion, materially impact these Terms. All such changes will be effective when posted on the TYK Website or through the user interface of the TYK Platform or emailed to you at the e-mail designated in your user account. You agree to review the TYK Website periodically for changes. We reserve the right to change or discontinue the TYK Service, in whole or in part, including without limitation, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the TYK Service after such changes are made to these Terms and are provided on the TYK Website or emailed to you will indicate your acceptance to such changes.
16. Governing Law; Venue. These Terms will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of TYK’s intellectual property rights, TYK may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts
18. Question Additional Information. If you have any questions regarding these Terms, please send an email to email@example.com.
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