Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies, and obligations. By accessing or using the Wishlist Platform, you agree to comply with and be bound by these Terms.
Last Updated: July 28, 2020
Thank you for using Wishlist!
These Terms constitute a legally binding agreement (“Agreement”) between you and Wishlist (as defined below) governing your access to and use of the Wishlist website, including any subdomains thereof, and any other websites through which Wishlist makes its services available (collectively, “Site”), our mobile, desktop, tablet, and other device applications, and application program interfaces (collectively, “Application”) and all associated services (collectively, “Wishlist Services”). The Site, Application, and Wishlist Services together are hereinafter collectively referred to as the “Wishlist Platform”.
When these Terms mention “Wishlist,” “we,” “us,” or “our,” it refers to Wishlist Rewards LLC (DBA Wishlist) – the company you are contracting with. When these Terms mention “User” or “you” it refers to the individual that Wishlist is contracting with.
Modification of these Terms
Wishlist reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Wishlist Platform and update the “Last Updated” date at the top of these Terms. Revised Terms are effective immediately. If you disagree with the revised Terms, please stop using the Wishlist Platform immediately. Your continued access to or use of the Wishlist Platform will constitute acceptance of the revised Terms.
Unless defined elsewhere in this Agreement, the terms below shall have the following meanings.
Brand Gift Card: An Offering on the Wishlist Platform that provides digital and/or physical credit to a third party company.
Client: An organization or other third party that has invited you to use the Platform or has sent you a Gift Card and has separately agreed to our Master Service Agreement and Statement of Work (collectively, “Contract”).
Confidential Information: Any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes), which is designated as “Confidential,” “Proprietary” or some similar designation. For more information see below section titled, “Confidentiality.”
Disclosing Party: any individual who is disclosing secrets or other Confidential Information.
Gift Card: Digital and/or physical credit which is paid for upfront and can be redeemed later for an Offering on the Wishlist Platform by a designated User.
User Content: Any message, image, or content created or received by User on the Platform
Offering: Any service, product, experience, or gift card offered on the Platform and is fulfilled by a Provider
Personal Information: Information about a User that is collected by their activity on the Platform or is submitted by the User
Provider: Any person, entity, or organization who provides and/or fulfills a Provider Service on behalf of Wishlist
Provider Service: An activity, gift card, product, or service that a Provider offers to Users on the Wishlist Platform
Selection: A choice which the user actively makes to reserve an Offering
Travel: An offering that allows a User to work with a Travel Partner to plan a trip of their choice.
Travel Partner: An authorized travel agent that works with a User to plan a trip of their choice.
User: Any person or persons using the Platform, receiving and redeeming a Gift Card, or participating in a Provider Service by a Provider, in any location, or on any medium. User may also be called “You” within this agreement.
Portions of the Platform include interactive features, such as messaging functions (thank you notes, peer recognition, reward messages, and other forms of employee recognition), comment features, personalized areas, and profiles that allow registered Users to post, display or transmit messages, content and other materials (collectively, “User Content”).
Wishlist is under no obligation to review any User Content and assumes no responsibility or liability relating to any User Content. Wishlist may block, reject, and/or remove any User Content at any time.
You represent and warrant that you own or control all rights in and to all User Content that you post, display, or transmit through the Platform and that you have the right to grant the license granted below to us and our licensees, successors and assigns. You also represent and warrant that all of your User Content does and will comply with these Terms. You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Wishlist, shall be liable for such User Content, including its legality, reliability, accuracy, and appropriateness.
Any User Content you post, display or transmit through the Platform may be visible to other Users within your organization’s account. By providing any User Content, you grant to Wishlist and its licensees, successors and assigns the right to use, reproduce, modify, perform, display, and distribute any such User Content, but only for (i) purposes of operating and providing the Platform to you and to your organization and other authorized Users in your organization, if applicable according to your account settings or the terms of your organization’s Client Agreement, and (ii) Wishlist’s internal business purposes, including without limitation for analyzing usage of and improving its Platform.
Monitoring and enforcement; termination
You understand and acknowledge that Wishlist or Client has the right to:
- Remove or refuse to post or transmit any User Content for any or no reason in its sole discretion.
- Take any action with respect to any User Content that Wishlist or Client deems necessary or appropriate in its sole discretion, including if Wishlist believes that such User Content violates this TOS, infringes any intellectual property right or other rights of any person or entity, threatens the personal safety of Users of the Platform or could create liability for Client, Wishlist, its customers or other Users.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform.
- Terminate or suspend your access to all or part of the Platform, including for any violation of this TOS, subject to the termination provisions of any applicable Client Agreement between your organization and Wishlist.
Without limiting the foregoing, Wishlist has the right to cooperate with any law enforcement authorities or court order requesting or directing Wishlist to disclose the identity or other information of anyone posting any User Content on or through the Platform.
Site Access and Account Security
Wishlist grants you a personal, limited, non-exclusive, non-transferable, revocable license to access and use the Platform and, if you are a registered user, to access and use the Platform through your browser or an Integration (defined below), in each case accordance with these Terms and any Agreement between Client and Wishlist.
Wishlist makes available to its Clients and Users from time to time application programming interfaces, browser or other application plugins and related documentation and other related materials, which may include sample code (collectively, the “API”). If you are a User, or an administrator or developer on behalf of an organization that is a Wishlist Client, then you may use the API for your internal business purposes to develop or enable web or other software services or applications (“Integrations”) that will communicate and interoperate with the Platform. Notwithstanding anything in these Terms or other agreement between you or Client and Wishlist to the contrary, the API is provided “as is,” and Wishlist makes no representation or warranty of any kind in connection with the API, including without limitation any representation or warranty that the API, Integrations, or any products or results of the use of the API or Integrations will meet your or your organization’s requirements, achieve any intended result, be compatible or work with any of your or your organization’s or any third party’s software, systems or other services.
If you are an administrator on behalf of an organization that is a Wishlist Client, then you may designate authorized Users of your organization’s account, and by using the Platform and the Service, you confirm that you are authorized by your organization to do so. Those authorized Users will have the ability to access your organization’s account and to take any actions that Users are authorized to take under these Terms and any applicable Agreement. If you establish or are given a User account as an employee or contractor of an organization that has an Agreement with Wishlist, you represent that you are authorized by your organization to do so, and you agree to use the Platform solely as authorized by your organization.
To access certain areas of the Platform, you may be asked or required to provide certain registration details or other information. It is a condition of your use of the Platform that all such details and information that you provide be correct, current, and complete. You expressly agree that all information you provide to register with Wishlist is subject to the terms of Wishlist’s Privacy Notice, and you consent to all actions we take with respect to your information consistent with Wishlist’s Privacy Notice.
If you choose or are provided with a username, password, or any other information as part of the security features of the Platform, you agree to treat such information as confidential, and you agree not to disclose it to any other person or entity. Your User account, if applicable, is personal to you, and you agree not to provide any other person with access to the Platform through your user account. You agree to notify Wishlist immediately if you become aware of any unauthorized access or use of your username, password or other security information.
Wishlist reserves the right to bar access to the Platform by any unauthorized user, or any user who Wishlist has reason to believe is in breach of these Terms.
System or data breach
Wishlist, User, and Client agree to implement and uphold commonly accepted internet safety and security protocols. Additionally, both parties agree to monitor and test their cybersecurity safeguards from time to time and adjust their safeguards in light of relevant circumstances or the results of any relevant testing or monitoring. Clients and Users are responsible for maintaining the confidentiality of their account and password and for restricting access to their account(s) and agree to accept responsibility for all activities that occur on or through their account or password.
Offerings, Providers and Provider Services
Terms applicable to all Provider Services
Subject to meeting any requirements (such as completing any verification processes) set by Wishlist and/or the Provider, you can make a Selection on an Offering available on the Wishlist Platform by following the respective booking process. You agree to pay all applicable fees, including Booking Fees, Security Deposit (if applicable), applicable taxes, and any other fees (collectively, “Total Fees”) for any booking requested in connection with your Wishlist Selection.
Upon receipt of a booking confirmation from Wishlist, a legally binding agreement is formed between you and your Provider, subject to any additional terms and conditions of the Provider that apply, including in particular the applicable cancellation policy and any rules and restrictions specified by the Provider. Wishlist will collect the Total Fees at the time of the booking request or upon the Provider’s confirmation.
If you book a Provider Service on behalf of additional guests, you are required to ensure that every additional guest meets any requirements set by the Provider, and is made aware of and agrees to these Terms and any terms and conditions, rules and restrictions set by the Provider. If you are booking for an additional guest who is a minor, you represent and warrant that you are legally authorized to act on behalf of the minor. Minors may only participate in a Provider Service if accompanied by an adult who is responsible for them.
All Provider Services are subject to availability and shall be booked in advance in accordance with the requirements found on the Platform. Wishlist makes no claim or guarantee as to the availability of any specific Provider Service and has the right to refuse access to any Offering on the Platform with or without reason. In the event that Wishlist no longer offers, or otherwise terminates or withdraws, an Offering, you shall be entitled to exchange the Selection for another Offering of equal or lesser value.
Wishlist and Client are not responsible for damage that occurs while the User is participating in a Provider Service. Users will be solely responsible for all damage they may inflict against the Provider, Provider’s property, other attendees, Provider employees, injury to the User or their guests, or any other damage caused by the User during the Provider Service.
You should carefully review the description of any Offering you intend to book to ensure you (and any additional guests you are booking for) meet any minimum age, proficiency, fitness, or other requirements that the Provider has specified in their Offering description. At your sole discretion, you may want to inform the Provider of any medical or physical conditions, or other circumstances that may impact your and any additional guest’s ability to participate in any Provider Service. In addition, certain laws, like the minimum legal drinking age in the location of the Provider Service, may also apply. You are responsible for identifying, understanding, and complying with all laws, rules, and regulations that apply to your participation in a Provider Service.
Before and during a Provider Service you must at all times adhere to the Provider’s instructions.
You may not bring any additional individuals to a Provider Service unless such an individual was added by you as an additional guest during the booking process on the Wishlist Platform.
Once an Offering has been Selected, a User may not make any additions to the Provider Service that causes the cost of the Provider Service to increase. In doing so, the payment method will not work and the Provider will deny service to the User.
One of the Offerings listed on the Wishlist Platform is Live Events. This section describes the specific terms you are agreeing to by Selecting a Live Event Offering.
ALL SALES ARE FINAL.
Tickets purchased through the Wishlist Platform CANNOT be resold.
User understands that event tickets sold through Wishlist Platform may be obtained by Ticket Brokers operating in the secondary ticket market and may be resold above or below the face value. User agrees and understands that ticket price as shown on their order and paid by User for said tickets may be higher or lower than the original purchase price shown on the face of the ticket.
Wishlist is not affiliated with any venue, sports team, or performer and is not a primary box office.
By nature, the ticket market is dynamic and constantly changing so tickets displayed may not be available at time of purchase. Wishlist will not guarantee tickets as ordered until User is in possession of tickets. Immediately upon receiving tickets, it is the User’s responsibility to verify the performer, venue, date, time, and seat location of tickets is accurate. Users are responsible to maintain possession of tickets until time of use. Wishlist will not replace lost or stolen tickets.
User agrees to adhere to all rules, procedures, and policies of the venue and performer. Inappropriate behavior by User resulting in ejection from the venue will be the responsibility of the User as will any and all fines, legal expenses, or other expenses that are incurred by User as a result of the ejection. Additionally, Users will be solely responsible for all damage they may inflict against the venue, performer, other attendees, employees of the venue, or any other person.
One of the Offerings listed on the Wishlist Platform is Hotels. This section describes the specific terms you are agreeing to by Selecting a Hotel Offering.
Due to the nature of our dynamic hotel inventory and highly discounted rates, hotel rooms are not refundable nor alterable after booking.
A valid User credit card is required upon check-in for incidentals and/or additional costs.
A Provider may apply additional terms and conditions related to the Provider Offering and other services provided by that Provider (“Provider Terms and Conditions”). You agree to abide by the Provider Terms and Conditions imposed by the Provider(s). Please review the Provider Terms and Conditions associated with your Confirmed Booking(s).
As the Hotel market is dynamic and constantly changing, rooms displayed may not be available at time of purchase. Wishlist will not guarantee rooms as confirmed until the User is in possession of booking confirmation.
One of the Offerings listed on the Wishlist Platform is Travel. This section describes the specific terms you are agreeing to by Selecting a Travel Offering.
All Travel will be managed, booked, and serviced by a Wishlist Travel Partner.
A 15% travel fee will be deducted from the entire Gift Card value except in cases where Clients have elected to pay for the travel fee in addition to the Gift Card value.
Upgrades are permitted and encouraged for Travel. In situations where an upgrade is required, Users agree to pay Wishlist, and no other party, for any upgrades that may occur during your booking process.
Users will be unable to book trips with a departure date of less than sixty (60) days in the future. This buffer allows our Travel Partners to secure appropriate accommodations and experiences.
By default, Travel cannot be altered, transferred nor canceled after submitting a selection. In the case that cancellations or rescheduling are allowed, additional fees may apply for rescheduled or canceled trips and fee amounts may vary. Wishlist will do everything in their power to collect refunds when a trip must be rescheduled, but refunds are up to the sole discretion of the Provider. User agrees to pay all necessary cancellation fees, rescheduling fees, as well as forfeit some or all of their travel reward if the circumstances arise.
Airport check-in is recommended two (2) hours prior to departure for domestic flights and three (3) hours prior to departure for international flights. Wishlist is not responsible for missed or canceled flights or other transportation.
If you are a United States Citizen you MUST have the following for your trip:
- US Passport valid for 6 months after return from your trip
- Note: All US citizens and non-US citizens may require special visas, immigration arrangements, and re-entry permits which are the responsibility of the traveler. Please see www.travel.state.gov for more details. Wishlist does not supply or recommend visas for travelers, that is the sole responsibility of the traveler, and Wishlist cannot refund nor rebook trips if travel requirements are not met.
- Each traveler’s name must correspond exactly to the name on the valid government-issued photo ID used at check-in.
Exact rates and fares are not guaranteed until your trip is confirmed in full. Taxes are always subject to change even after paid or confirmed in full.
Wishlist is not liable for any personal injury, property damage, accident, delay inconvenience, change in itinerary or accommodations, or other irregularity which may occur due to (1) wrongful, negligent or arbitrary acts or omission on the part of the Providers, their employees or others not in the direct control of Wishlist, (2) defects or failures of any conveyance, equipment or instrumentality under control of the Suppliers/Providers, and (3) but not limited to, acts of God, acts of terrorism, fire, acts of governments or other authorities, wars, civil disturbances, riots, strikes, thefts, pilferage, epidemics, quarantines or dangers incident to the sea, land or air.
Users agree to hold Wishlist and Travel Partners blameless in making Travel arrangements on their behalf. Furthermore, restitution or damages, if any are claimed, shall be sought directly from the suppliers.
Wishlist is unable to:
- Provide travel advice in most locations
- Refund and/or credit already existing reservations
- Book vacation rentals or shared spaces
- Amend airfare reservations once they have been booked; this must be done by the traveler
- Cancel and/or change hotel reservations once they have been finalized
- Guarantee specific hotel requests
- Make transportation reservations
- Make restaurant reservations
- Book or reserve more than three (3) hotels per booking
Brand Gift Cards
One of the Offerings listed on the Wishlist Platform is Brand Gift Cards. This section describes the specific terms you are agreeing to by Selecting a Brand Gift Card.
ALL BRAND GIFT CARD SELECTIONS ARE FINAL. ONCE A SELECTION IS MADE, WISHLIST IS UNABLE TO REFUND OR EXCHANGE THE BRAND GIFT CARD.
Once a gift card has been Selected, it is automatically sent by a third party vendor. Once the gift card is delivered to the User’s email, Wishlist is no longer liable for, or able to service the card. Any questions or concerns regarding the Brand Gift Card, including but not limited to balance inquiries and fraud, must be directed to the brand that the gift card is for.
Booking Modifications, Cancellations and Refunds
Providers and Users are responsible for any modifications to a booking that they make including but not limited to date changes, upgrades, change of services, etc. (“Booking Modifications”), and agree to pay any additional fees and taxes associated with such Booking Modifications.
Users cannot cancel a confirmed booking at any time and no refunds will be given to the User in the chance that a cancellation is made.
If a Provider cancels a confirmed booking, the User will receive a full refund of the Total Fees in the form of a new Wishlist Gift Card once Wishlist has collected the Total Fees from the Provider.
For Provider Services, if weather poses a safety risk to Users, or if it prevents a Provider from carrying out a Provider Service that takes place primarily outdoors, Providers may cancel the Provider Service. Providers may also cancel the Provider Service if other conditions exist that would prevent the Provider from offering the Provider Service safely.
In certain circumstances, Wishlist may decide, in its sole discretion, that it is necessary to cancel a pending or confirmed booking and initiate corresponding refunds and payouts. This may be for reasons set forth in these Terms or (i) where Wishlist believes in good faith while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to Wishlist, other Members, third parties or property, or (ii) for any of the reasons set out in these Terms. In these cases, Users will receive a full refund of the Total Fees in the form of a new Wishlist Gift Card.
Lost or stolen Gift Cards
Wishlist is not able to replace lost or stolen Gift Cards. Gift Cards are not redeemable for cash unless required by law. Unauthorized or unlawful reproduction, resale, modification, or trade of Gift Cards is prohibited.
Combining Gift Cards
In certain cases, you are able to request to combine multiple Gift Cards (“Combination Request”) into one, larger Gift Card. In order for a reward to qualify for combination, it must fulfill the following criteria
- Both Gift Cards belong to you
- The Gift Card pages on the Platform are compatible
- The sum of the two values of Gift Card pages on the Platform equal the value of an already existing Gift Card page
Wishlist reserves the right to deny any Combination Request.
In the event where the two Gift Card page values do not equal an already existing Gift Card page, you will have the option to upgrade to reach a pre-existing Gift Card level.
Once a Gift Card is combined, it cannot be split.
Splitting Gift Cards
In no case is it possible for a Gift Card to be split into multiple Gift Cards.
Monetary Value of Gift Cards
Wishlist is not obligated to display the monetary value of a Gift Card to Users.
Only one transaction with one single Provider is allowed for each Gift Card unless otherwise stated in the Offering.
The Internal Revenue Service and your state taxing authority may deem your receival and redemption of a Gift Card as the equivalent of taxable income to you. Further, your employer may report its offering of Gift Cards to the taxing authorities as additional compensation to you. You, and not Wishlist or any of the Providers, are responsible for determining whether you need to include your redemption of Gift Cards as additional income when you prepare your tax returns. You will be responsible for all taxes related to your use of the Wishlist Platform and your redemption of Gift Cards. You agree to indemnify and hold Wishlist and its Providers harmless from any claim by any taxing authority related to your use of the Wishlist Platform and your redemption of Gift Cards.
Wishlist respects your privacy.
Information You Actively Submit on our Platform. If you send us data through our Platform, we collect personal information about you and the company or other entity you represent (e.g., your name, organization, birth date, hire date, email address, program feedback, thank you notes, User Content, etc). In such instances, you will know what data is collected, because you will actively submit it.
Information Passively Submitted on our Services. When you visit our Platform, our servers may collect information from or about the computer, phone, or other devices on which you have access to our Platform. In particular, we collect the following types of information: the Internet Protocol (IP) address used to connect your device to the Internet; browser type, version, and time zone setting, browser plug-in types and versions, operating system, and platform; the full Uniform Resource Locator (URL) clickstream to, through, and from our Platform, including date and time; cookie number; Services you viewed; your searches on our Platform; and the phone number you used to call us if you call us. During some visits, we may use software tools to measure and collect session information, including page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), and methods used to browse away from the page. Unless you also actively submit personal information to us, any information that is passively submitted typically does not allow us to identify you personally.
- To remember when you have accessed our Platform;
- To process any selections you make on our Platform;
- To prevent fraud;
- To gather statistical information on the usage of our Platform;
- To enable interactive features in our Services;
- To advertise our Platform on third party websites and other digital media.
Information You Actively Submit in Person or via Email, Mail, or Phone. We may also collect your personal information outside of the Platform in various business situations, such as if you speak with our personnel at a trade show or industry event, call us for phone-based customer service, or email or mail our personnel for business purposes. In these circumstances, we may collect and process your contact information (e.g., name, email address, phone number, and business address), information about your business and its interactions with us, and any other personal information you actively provide to us. In such instances, you will know what data is collected, because you will actively submit it.
Publicly Available Information. If you have identified yourself to us as a User of our Platform or expressed interest in our products or services, we may collect the following personal information about you from publicly available sources: your organization, contact information, preferences, and demographic information. These publicly available sources include public profiles on the company and professional networking websites.
Wishlist Rewards’ Use of Your Personal Information.
We use personal information that we collect to:
- Upon request, create access for you or the organization for which you work;
- Fulfill your orders for Gift Cards;
- Update your account and transactions;
- Discharge our contractual obligations to you;
- Provide requested services and information;
- Respond appropriately to your inquiries;
- Secure, debug, optimize and improve the performance of our Platform;
- Customize your experience on the Platform; and
- Comply with any legal obligations that apply to us.
To the extent permitted by applicable law, including in accordance with your consent where required by applicable law, we use your email address to send you marketing communications. If you do not wish to receive such marketing emails, you may opt-out by declining to receive such emails when registering or at other information collection points on our Platform or by following opt-out instructions included in such emails. We also perform statistical analyses of the Users of our Platform to improve the content, design, and navigation of the Platform. In these cases, we use anonymized, aggregate or statistical data that cannot be used to identify you. If you wish for us to delete any or all of your personal information,your request may be made to firstname.lastname@example.org
Disclosure of Your Personal Information. Information about our Users is an important part of our business, and we are not in the business of selling it to others. We share your personal information only as described below and in accordance with applicable law.
Third-Party Service Providers: We employ Providers who fulfill Offerings for redeemed Gift Cards. They have access to personal information needed to fulfill their service to and for you, but may not use it for other purposes.
Affiliates: We share your personal information with our affiliates to help fulfill services, respond appropriately to requests, and to improve our and their services and offerings.
Business Transfers: As we continue to develop our business, we might sell or buy subsidiaries, business units, or our entire business. In such transactions, customer information generally is one of the transferred business assets but remains subject to the promises made in any pre-existing privacy notice (unless the customer consents otherwise) and applicable laws.
Protection of Wishlist and Others: We disclose account and other personal information when we believe it is appropriate to comply with the law; enforce or apply our Terms and other agreements; or protect the rights, property, or safety of Wishlist, Users, or others. This includes exchanging information with other companies and organizations for fraud protection and credit risk reduction. This does not include selling, renting, sharing, or otherwise disclosing personally identifiable information from Users for commercial purposes in violation of the commitments set forth in this Privacy Notice.
With Your Consent: Other than as set out above, we will obtain your consent as required by law before disclosing your personal information to a third party.
If you have any other questions, don’t be afraid to ask. Your concerns are our concerns!
Limitation of Liability
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Wishlist Platform, your publishing of User Content, Selection of any Offering via the Wishlist Platform, your participation in any experience, event, accommodation, travel or use of any other Provider Service, or any other interaction you have with another User whether in person or online remains with you. Neither Wishlist nor any other party or individual involved in creating, producing, or delivering the Wishlist Platform or Provider Services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Wishlist Platform or Provider Services, (iii) from any communications, interactions or meetings with another User or other persons with whom you communicate, interact or meet with as a result of your use of the Wishlist Platform, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Wishlist 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. Except for our obligations to pay amounts to applicable Providers pursuant to these Terms, in no event will Wishlist’s aggregate liability arising out of or in connection with these Terms and your use of the Wishlist Platform exceed the amounts you have received or paid for Gift Cards on the Wishlist Platform in the twelve (12) month period prior to the event giving rise to the liability. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Wishlist and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S. this does not affect Wishlist’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
You agree to defend, indemnify, and hold harmless Wishlist, its subsidiaries, and affiliates, and their respective directors, officers, employees and clients from and against all claims and expenses, including, without limitation, attorneys’ fees arising out of, related to, or in connection with any of the following: (a) any User Content submitted or posted by you in connection with the Platform, or any use of the Platform in violation of these Terms; (b) fraud you commit or your intentional misconduct or gross negligence; or (c) your violation of any applicable U.S, or foreign law or rights of a third-party.
You are solely responsible for your interactions with Providers and other users of the Platform. To the extent permitted under applicable laws, you hereby release Wishlist from any and all claims or liability related to any product or Provider Service, regardless of whether such product or Provider Service is an Offering available through the Platform, any action or inaction by a Provider, including, without limitation, but not limited to any harm caused to you by action or inaction of a Provider, a Provider’s failure to comply with applicable law and/or failure to abide by the terms of a Provider offering or any other product or service purchased or obtained by you from the Provider, and any conduct, speech or User Content, whether online or offline, of any other third-party.
Wishlist shall be excused from performance under these Terms, to the extent it is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines, pandemics or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (f) other causes beyond the reasonable control of Wishlist.
Applicable Law & Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Colorado and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Dispute Resolution and Arbitration Agreement must be brought in state or federal court in Denver, Colorado, unless Wishlist and User both agree to some other location. Wishlist and User both consent to venue and personal jurisdiction in Denver, Colorado.
Dispute Resolution and Arbitration Agreement
(a) Binding Arbitration. Except as specifically stated herein, any dispute or claim between you and Wishlist and/or its subsidiaries, affiliates, and/or any of their respective members, officers, directors, and employees (all such entities collectively referred to herein as the “Wishlist Entities”) arising out of, relating in any way to, or in connection with the Terms, the Platform or your use of the Platform, your Personal Information, User Content, or any Offerings or Provider Services (“Dispute(s)”) shall be resolved exclusively by final, binding arbitration; except that you may bring a qualifying claim over a Dispute in a small claims court. By virtue of this Dispute Agreement (defined below), you and Wishlist are each forgoing the right to go to court and have a Dispute heard by a judge or jury. The provisions of this Section shall constitute your and Wishlist’s written agreement to arbitrate Disputes under the Federal Arbitration Act (“Dispute Agreement”). The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules, including, without limitation, the AAA’s Consumer-Arbitration Rules, available at https://www.adr.org/consumer. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award, if appropriate.
(b) No Class Action Matters. Wishlist and User each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that Disputes shall be arbitrated only on an individual basis and not in a class, consolidated, or representative action and that the arbitrator may award relief (including injunctive relief) only on an individual basis. The arbitrator does not have the power to vary these provisions.