1. Acceptance of Terms
Welcome to Jelly Belly Candy Company. MyJellyBelly is a web site operated by Giftmoto, LLC ("Giftmoto"). Giftmoto provides its website and related services (the "Site") to you subject to the following User Agreement ("Agreement") which may be updated from time to time without notice to you. Your continued use of the Giftmoto Site after any such changes constitutes your acceptance of the new terms. If you have any questions about the Agreement, you may contact us at contact-us [at] giftmoto [dot] com.
BY CONTINUING TO USE THE SITE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL REVISIONS THEREOF.
2. User Account, Password, and Security
You will receive a password and account designation upon completing the Site's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Giftmoto of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Giftmoto cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.
3. User Conduct
By placing an order, you represent and warrant to Giftmoto that:
a) you are at least 18 years of age (19 in Alabama and Nebraska; 21 in Mississippi);
b) you will not upload, download, post, email or otherwise transmit any materials ("Content") including but not limited to text, data, photos, graphics, etc. that are unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another's rights, including but not limited to rights of celebrity, privacy and intellectual property;
c) you will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
d) you will not upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By uploading or downloading any Content, you represent and warrant to Giftmoto that you have the lawful right to reproduce and distribute that Content;
e) you will not upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
f) you will not upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
g) you will not upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
h) you will not upload, download, post, email or otherwise transmit false or misleading information;
i) you will handle, store and transport all product in accordance with applicable laws and regulations;
j) you will not disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked websites.
k) you will not access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution;
l) you will not disrupt or interfere with any other user's enjoyment of the Site or affiliated or linked websites.
m) you will not frame or link to the Site except as permitted in writing by Giftmoto;
You acknowledge that Giftmoto is not obligated to pre-screen Content, but that Giftmoto and its designees shall have the right (but not the obligation) in their sole discretion to reject or remove any Content that is available via the Site. Without limiting the foregoing, Giftmoto and its designees shall have the right to remove any Content that violates this Agreement or is otherwise reasonably objected to by Giftmoto. You agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any other Content, created by Giftmoto or submitted to Giftmoto by yourself or any third parties.
You acknowledge and agree that Giftmoto may archive Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Giftmoto, its users and the public.
You understand that the technical processing and operation of the Site, including your Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connection networks or devices.
In addition, you agree that you are solely responsible for actions and communications undertaken or transmitted under your account. Giftmoto takes no responsibility and assumes no liability for any Content uploaded or otherwise transmitted by or to you or by or to any third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, infringement, obscenity, pornography or profanity you or a third party may encounter. Giftmoto reserves the right but does not assume the obligation to remove any materials it may deem objectionable. You hereby agree to waive any claims against Giftmoto and its affiliates, contractors, agents and employees for losses, damages and injuries which are based on or relate to communications or materials made available to the Site or posted on the Site by persons other than Giftmoto or its affiliates.
You hereby agree to indemnify Giftmoto and its officers, directors, consultants, attorneys, employees, and affiliates from all losses, claims, suits, actions and expenses, including reasonable attorney’s fees, which are made against Giftmoto, suffered by Giftmoto or incurred by Giftmoto in connection with or based on (i) any or breach of this Agreement by you or (ii) any Content, text, or material you provide to Giftmoto.
Giftmoto will have no obligation to deliver any materials or products containing Content that Giftmoto believes is or reasonably believes may be in violation of any the provisions of this Agreement. In the event that Giftmoto has produced, created or purchased any materials or products which it later discovers contains or reasonably may contain Content in violation of any of the provisions of this Agreement, Giftmoto may charge you for all such expenses and if you have already paid for any such products or materials, Giftmoto will have no obligation to either deliver the products or materials nor to refund any such payment from you for such products or materials which are or which Giftmoto reasonably believes may be in violation of any of the provisions of this Agreement.
5. Proprietary Rights
You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by Giftmoto, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any Content received through the site without the authorization of the Content owner, except for uses permitted by law. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site including code and software, in violation of applicable copyright and other intellectual property laws.
You retain all ownership rights you may already have to your Content. However, by submitting Content to Giftmoto, you grant Giftmoto a non-exclusive license to acquire, create, and deliver products using your Content to you.
You acknowledge and agree that the Site and any software used in connection with the Site ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Site or the Software, in whole or in part.
6. Copyright Policy and Copyright Agent
Giftmoto respects the intellectual property rights of others. We ask our users to do the same. Giftmoto may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others or whose Content is in violation or whose content reasonably appears to Giftmoto to be in violation of the intellectual property rights of others.
If you believe that your Content has been copied in a way that constitutes copyright infringement, please notify Giftmoto's Copyright Agent, and provide the following information ("Notice"):
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
b) a description of the copyrighted work claimed to have been infringed;
c) a description of where the claimed infringing Content is located on our Site and details about any claimed infringing use of your copyrighted materials;
d) your address, telephone number, and email address
e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are authorized to act on behalf of the owner of the copyright interest involved.
Giftmoto's Copyright Agent can be reached at: contact-us [at] giftmoto [dot] com or by telephone at: 408.866.5500.
You agree to defend, indemnify and hold Giftmoto and Giftmoto's officers, directors, employees and agents harmless from all judgements, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney's fees, expert witness fees, and costs of litigation arising out of or based on (a) content you submit, post to or transmit through the Site, (b) your use of the Site, (c) your connection to the Site, (d) your violation of the Agreement or (e) your violation of any rights of a third party.
8. No Resale
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Site, use of the Site or access to the Site without Giftmoto's express written consent. If you are an individual consumer, you agree that the product and/or merchandise is being ordered solely for your personal use, and you will not market, resell or otherwise distribute the product or merchandise to any third party for commercial purposes. If you are a business, you agree that the Product and/or Merchandise is being ordered solely to promote your own products or services by distributing the Product and/or Merchandise to Customers and others at no cost to the recipient as business gifts or advertising items. You will not resell the Product or Merchandise. (Note: If you are a promotional agency or distributor, you may resell the Product and/or Merchandise solely to businesses for use by such businesses to promote their own products or services as described in these Terms.
9. Revoked Order
None-withstanding your acknowledgement that Giftmoto is not obligated to pre-screen Content, orders that are found in Content violation of user conduct as outlined here in will be revoked. You will receive an email notice with a link directing you to change your content. If you change your content and you are still in violation, you will received additional and final email notice directing you to change your content. You have two email notices or five business days, whichever occurs first to adjust your content. Failure to change your content to satisfy the requirements of this user agreement will result in an automatic cancellation of the order with full refund less 20% processing fee.
10. Order Cancellation
Please check the status of your order online. If the status of your order appears as 'printed', we are unable to cancel your order. If your order has not yet been printed, you may email us at contact-us [at] giftmoto [dot] com and we will gladly assist you with your cancellation.
Due to all of the products being custom-printed, a product may not be returned for credit. If your custom-printed product order arrives damaged or incomplete and you notify us of the problem within 5 business days after your receipt of your order, we will promptly provide the missing product or replace the defective one.
You agree that Giftmoto, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Site, and remove and discard any Content you may have contributed to the Site, at any time for any reason or no reason. Giftmoto may also in its sole discretion and at any time, with or without notice, discontinue providing you with access to the Site, or any part thereof. You agree that any termination of your access to the Site under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Giftmoto may immediately deactivate or delete your account and all related information and files in your account and/or may bar any further access to such files of the Site. Further, you agree that Giftmoto shall not be liable to you or any third-party for any termination of your access to the Site. Should you object to any terms and conditions of the Agreement or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue your use of the Site and/or terminate your account.
The Site may provide, or third-parties may provide, links to other websites or resources. Because Giftmoto has no control of such sites and resources, you acknowledge and agree that Giftmoto is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Giftmoto shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
14. DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS SITE AND THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE THROUGH IT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GIFTMOTO AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO DISCLAIMING ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
GIFTMOTO DOES NOT MAKE ANY WARRANTY THAT (A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR (B) THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR (D) THAT DEFECTS, IF ANY, WILL BE CORRECTED.
YOU AGREE THAT Giftmoto SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH THE SITE OR ANY CONTENT CONTAINED THEREIN INCLUDING BUT NOT LIMITED TO LOSS OF DATA FROM DELAYS, NONDELIVERIES OF CONTENT OR EMAIL, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OF CONTENT OR EMAIL, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF GIFTMOTO, ITS AFFILIATES, ITS LICENSORS, OR A USER'S OWN ERRORS AND/OR OMISSIONS.
YOU EXPRESSLY AGREE THAT PURCHASE OF ANY PRODUCTS THROUGH THE SITE AND THAT YOUR USE OF THIS SITE, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR BUSINESS, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, DATA AND/OR SOFTWARE.
YOU ACKNOWLEDGE THAT GIFTMOTO DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THIS SERVICE. EXCEPT AS OTHERWISE AGREED IN WRITING, GIFTMOTO AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THIS SITE.
YOU ACKNOWLEDGE THAT GIFTMOTO MAKES NO WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THIS SITE WILL BE MAINTAINED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GIFTMOTO OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
15. LIMITATION OF LIABILITY; WAIVER OF CONSEQUENTIAL DAMAGES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL GIFTMOTO OR ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, AFFILIATES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING GIFTMOTO OR RELATED SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GIFTMOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR (E) ANY OTHER MATTER RELATING TO THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired.
17. APPLICABLE LAW
These terms and conditions shall be governed by and construed in accordance with the laws of the state of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these terms and conditions shall be filed only in the Superior Court of Santa Clara County, California, or the United States District Court for the Northern District of California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these terms and conditions.