GEMSNY OFFER TERMS
EFFECTIVE DATE: Nov 04, 2020
Thank you for participating in GemsNY’s Offer Referral Program (the “Program)! The Program allows users (the “Advocates”) to share an offer (“Offer”) by using a personalized link that Advocates share with their friends (the
“Friends”). Subject to these Offer Terms, and as described below, Advocates and Friends will be able to obtain an online coupon code (“Reward”) that they can redeem with GemsNY.
By participating in the Program, you, as an Advocate or Friend, as the case may be (collectively, “You”), agree to enter into these Offer Terms with GemsNY. Your participation in the Program is also subject to your consent
to be bound by the GemsNY Referral Program Terms of Service (below), which are entered into by and between You and Gemsny Corp. d/b/a GemsNY (“GemsNY”).
Subject to these Offer Terms and any other terms described in the offer page, the personalized links that Advocates share with their Friends will allow their Friends to obtain Rewards that they can redeem when making their
first purchase order with GemsNY (a “Qualifying Purchase”). A Qualifying Purchase may be subject to a minimum spend. When a Friend uses an active personalized link to make his or her Qualifying Purchase with GemsNY, the
Advocate who referred that Friend will earn their own Reward that the Advocate can use for future purchases with GemsNY or, if applicable, at third-party retailers. To qualify for a Reward, the Friend must be a new customer
to GemsNY, but there is no requirement that the Advocate be a new customer. Rewards ordinarily are distributed via email after the completion of a Qualifying Purchase and after approval by GemsNY, in its sole discretion.
Advocates may not earn more than 30 Rewards in 30 days or more than 1000 Rewards in total. Advocates may earn only one (1) Reward per Friend, regardless of the number of purchases that his or her Friends make. Rewards cannot
be combined with other discount codes in a single order. To receive multiple Rewards, Advocates must introduce multiple Friends who make a Qualifying Purchase using the Advocate’s active personalized referral link. An Advocate
cannot refer him or herself to earn a Reward. When sharing Rewards, Advocates must tell their Friends that Advocates will receive a reward from GemsNY if they make their Qualifying Purchase using your personalized link.
GemsNY, in its sole discretion, may impose limits on how many Offers may be shared by an Advocate, as well as how frequently those Offers can be made, and Rewards may not be given if those limits are exceeded.
GemsNY reserves the right to refuse to issue or redeem a Reward to Advocates or Friends at any time. Further, GemsNY reserves the right, in its sole discretion, to (i) vary any and all elements of an Offer at any time without
notice to You and (ii) to prevent any individual from participating in this or future promotions. An Offer cannot be applied to previous purchases and is not redeemable for cash. You understand that although You initially
participated in an Offer as a Friend, You will be considered an Advocate if You share a personalized link with your own Friends.
You understand and agree that these Offer Terms are solely between You and GemsNY. You further understand that GemsNY solely provides services that facilitate your ability to participate in the Program and share our offers
with your Friends (as that term is defined below). Talkable is not involved in any decision pertaining to any particular Offer, including but not limited to the terms of such Offer, and who may or may not redeem Rewards.
If You wish to be removed from the Program, please contact support@gemsny.com. AS SUCH, YOU UNDERSTAND AND AGREE THAT GEMSNY IS NOT LIABLE FOR ANY DAMAGES YOU MAY SUFFER AS A RESULT OF PARTICIPATING IN THE PROGRAM, INCLUDING
BUT NOT LIMITED TO YOUR INABILITY TO OBTAIN OR REDEEM ANY REWARDS.
GEMSNY REFERRAL PROGRAM
TERMS OF SERVICE
EFFECTIVE DATE: Nov 04, 2020
1. INTRODUCTION
Thank you for using GemsNY! These Terms of Service (“Terms”) cover your rights and obligations relating to your access and use of the GemsNY website, your participation in the GemsNY Referral Program (as defined below), and
any other related services provided by us (collectively, the “Service”). All references to “we”, “us”, “our”, or “GemsNY” refer to Gemsny Corp., d/b/a GemsNY, a Delaware corporation. All references to “Advocate” refer to
the person referring a particular merchant offer, discount, or perk (the “Offer”) All references to “Friend” refer to the party receiving the Advocate’s referral of the Offer. All references to “you”, “your”, or “user”
refers to all users of the GemsNY Referral Program, whether they are Advocates or Friends. In addition to these Terms, please review the GemsNY Privacy Policy which describes our practices related to collection and use
of your information to provide the Service. These Terms apply to our Privacy Policy as well and both these Terms and our Privacy Policy comply with the requirements of the EU General Data Protection Regulation (“GDPR”).
By using the Service, you represent and agree that you have read, understand, and agree to be bound by both these Terms and our Privacy Policy as binding agreements.
PLEASE CAREFULLY READ THESE TERMS, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING LIMITATION OF OUR LIABILITY AND BINDING ARBITRATION. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY,
YOU MAY NOT ACCESS OR USE THE SERVICE.
Do not hesitate to contact us at info@gemsny.com if you have any questions or want to discuss these Terms.
2. AGE POLICY; PERMITTED USERS
The Service is not intended to be used by children under 16 years of age. By using the Service, you represent to GemsNY that you are over 16 years old and that you are legally able to enter into this Agreement. We do not knowingly
collect or solicit personally identifiable information from anyone under 16; if you are under 16, please do not use or attempt to use the Services or send any personal information about yourself to us. If we learn we have
collected personal information from anyone under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at info@gemsny.com.
3. PERMITTED USE OF THE SERVICE
You may only use the Service for its intended purpose. You may not use the Service for any other purpose. Any non-permitted use of the Service, as determined in our sole discretion, shall be grounds for immediate termination
of these Terms and immediate termination of your use of, and access to, the Service.
4. OVERVIEW OF THE SERVICE
GemsNY allows Advocates the opportunity to refer Friends (the “GemsNY Referral Program”) Offer to try the goods and/or services of GemsNY (the “Merchant”). In order to participate in the GemsNY Referral Program, an Advocate
may be required to provide us with certain Personal Data, which may include his or her name and email address. The Advocate will have the ability to share the Offer with a Friend, and this can be done in various ways, including
sharing the Offer through Facebook or emailing the Offer to your Friend. Once the Offer is received by your Friend(s), your Friend(s) will have the ability to accept the Offer to purchase the Merchant’s goods and/or services.
The Offer is subject to the GemsNY Offer Terms. You understand and agree that the GemsNY Offer Terms are entered into by and between you and the Merchant and that GemsNY is not a party to the GemsNY Offer Terms.
You understand that the terms of a particular Offer are governed by the GemsNY’s Offer Terms, which may contain restrictions imposed by the Merchant, including without limitation, a minimum spend, limits on how many times or
to how many Friends an Advocate may refer an Offer, and expirations on when the Offer may be claimed. You further understand that GemsNY is in no way involved in any decision pertaining to any particular Offer, including
but not limited to the terms of such Offer and who may or may not redeem Rewards (as that term is defined below). As such, you understand and agree that GemsNY is not liable for any damages you may suffer as a result of
participating in the Program, including but not limited to your inability to obtain or redeem any Rewards. The GemsNY Referral Program is subject to modification or termination at any time without notice in our sole discretion.
5. INFORMATION GEMSNY SHARES WITH THE MERCHANT AND THE THIRD-PARTY MERCHANTS
A core aspect of the Service is to provide Advocates and Friends the best discounts and perks our merchants’ offers. To that end, GemsNY will allow the Merchant to access the Personal Data of Advocates and Friends to facilitate
the provision of the Offer and related services surrounding the GemsNY Referral Program. Additionally, GemsNY will also allow merchants other than the Merchant (the “Third-Party Merchants”) access to the Personal Data of
Advocates and Friends to facilitate the provision of the services offered as part of the GemsNY Referral Program, including showing Advocates and Friends promotions or offers from the Third-Party Merchants and personalizing
the offer in accordance with Advocates’ and Friends’ preferences, sharing or purchase history. While the Merchant’s and the Third-Party Merchants’ use of your Personal Data is beyond our control, by agreeing to these Terms
and our Privacy Policy, you do consent to GemsNY sharing your Personal Data with the Merchant and the Third-Party Merchants to provide you with the services of the GemsNY Referral Program. Further, you understand that the
Merchant and the Third Party Merchants may not have appropriate technical and organizational safeguards in place for your Personal Data, including (1) being in a country that has adequate data privacy protections (as determined
by the European Commission); (2) having in place Binding Corporate Rules; (3) being certified under the EU-US and Swiss-US Privacy Shield programs; and/or (4) having Data Processing Agreements that incorporate Standard
Contractual Clauses approved by the European Commission. The Merchant and/or the Third-Party Merchants may be in countries that the European Commission has determined do not provide for an adequate level of data protection
to meet the requirements under the GDPR. If the Merchant and/or the Third-Party Merchants do not have appropriate technical and organizational safeguards, you understand that there might be certain risks affecting your
Personal Data, including but not limited to the fact there might not be a supervisory authority, data processing principles, and/or data subject rights in such countries that protect your Personal Data in the same way and
to the same extent the principles and standards of the GDPR might. You agree that your consent to the above is our lawful basis under the GDPR for transferring your Personal Data to the Merchant and the Third-Party Merchants.
6. LIMITATIONS ON USE OF THE SERVICE
You are prohibited from violating or attempting to violate any security features of the Service, including, without limitation, accessing content or data not intended for you, or logging onto a server or account that you are
not authorized to access; attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or to breach security or authentication measures without proper authorization; interfering
or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Service, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,” or undertaking
similar activities; and forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service. Further, you may not copy, sell, distribute, publish, download, or reproduce
any aspect of the Service. You also may not modify, make derivative works of, decompile, reverse-engineer, disassemble, or otherwise convert any aspect of the Service. Further, you agree not to license, sell, rent, lease,
transfer, assign, distribute, host, or otherwise commercially exploit the Service; you agree not to access the Service in order to build a similar or competitive service; you agree not to access (or attempt to access) any
of the Service by means other than through the interface that is provided by GemsNY; and you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be
contained in or displayed in connection with the Service.
7. OWNERSHIP OF THE SERVICE
The Service contains important and proprietary property owned by us, including software that constitutes our intellectual property and trade secrets. Nothing in these Terms shall be construed as a conveyance of any ownership
right or title in or to our property. We only grant you a nonexclusive, non-transferable, non-sublicensable, and revocable license to use the Service for the purposes permitted by these Terms, and only for as long as you
are permitted to access the Service.
8. THIRD PARTY SITES AND SERVICES
Our Service may be integrated with services provided by third parties, including those of the Merchant, as part of the functionality of the Service. You understand that, except as required by GDPR, we do not have control over
third parties and that such third parties are not agents of GemsNY. As such, we make no guarantees about, and assume no responsibility for, the information or services provided by third parties, except to the extent required
by GDPR. You acknowledge and agree that we make no representation or warranty about, and do not endorse, third party’s products or services or the information provided by third parties, whether through the Service or otherwise.
Accordingly, we are not responsible for your use of any third-party product or service or any harm or losses arising from or relating to your use of any third-party products or services, except to the extent required by
GDPR. You should contact the third party with any questions about their products and services. GemsNY hereby disclaims and you hereby discharge, waive and release GemsNY and its licensors and suppliers from any past, present,
and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. For California residents, YOU HEREBY WAIVE CALIFORNIA
CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
9. UPDATES TO THE SERVICE
GemsNY may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service (“Updates”). These may be automatically installed without providing any additional
notice or receiving any additional consent, except to the extent required by GDPR. If you do not want such Updates, your remedy is to stop using the Service. Your continued use of the Service is your agreement to these
Terms with respect to the Service.
10. INFORMATION YOU PROVIDE TO GEMSNY
As part of the functionality of the Service we provide, you have the ability to provide us with information about yourself through the Service. The information collected by us is detailed in our Privacy Policy. By providing
this information, you grant us the right to use the information for the purposes described in these Terms and in our Privacy Policy. While we do not claim ownership over any such information and content that you provide,
you agree that we have the right to use such information and content in furtherance of the Service. Further, by providing us with information and content through the Service, you represent and warrant that you own, or have
the full legal authority to distribute, all information that you provide through the Service.
11. INTELLECTUAL PROPERTY RIGHTS OF OTHERS
You may not upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of intellectual property or proprietary rights of any third parties. You represent and warrant to GemsNY
that you own, or have the right to use, all information that you provide on or through the Service. If you do not respect a third party’s intellectual property or proprietary rights, you are solely responsible for any violations
of law.
12. DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
GEMSNY MAKES NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICE: WILL MEET YOUR REQUIREMENTS; WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR WILL BE ACCURATE OR RELIABLE. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GEMSNY OR THOUGH THE SERVICE SHALL CREATE ANY WARRANTY.
GEMSNY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, BUSINESS, OR INFORMATION ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, AND GEMSNY IS NOT A
PARTY TO ANY TRANSACTION BETWEEN YOU AND THIRD-PARTIES.
GEMSNY MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICE, AND GEMSNY WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED
IN OR ACCESSED THROUGH THE SERVICE.
13. LIMITATION OF LIABILITY
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) GEMSNY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY
DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICE, EVEN IF GEMSNY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) GEMSNY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED
TO THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED $100.
14. INDEMNIFICATION
You agree to defend, indemnify and hold harmless GemsNY, its directors, officers, and agents, as well as its licensors, and suppliers from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made
by any third party due to or arising out of (i) your use of the Service, (ii) your violation of these Terms, or (iii) your violation of any law or the rights of any third party. GemsNY reserves the right, at your expense,
to assume the exclusive defense and control of any matter for which you are required to indemnify GemsNY and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without GemsNY’s
prior written consent. GemsNY will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
15. GOVERNING LAW
These Terms shall be governed by the laws of the State of California, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the state and federal courts in or for San Francisco County,
California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in these Terms.
16. DISPUTE RESOLUTION:
You agree to resolve any dispute, claim, or controversy arising out of or relating to your use of the Service in the following manner. First, you and GemsNY each agree to attempt in good faith to resolve the dispute informally
by contacting each other by email (you can email us at support@gemsny.com). Second, if the dispute is not resolved through informal resolution, we both agree to attempt in good faith to resolve the dispute through mediation
administered by JAMS, which shall take place in San Francisco County, California, and the costs of which shall be divided equally between you and GemsNY. Third, if the dispute is not resolved through informal resolution
and mediation, we both agree to participate in binding arbitration administered by JAMS, which shall take place in San Francisco County, California.
Either you or we may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described above.
We both agree that, in the event of arbitration, or in the event of a lawsuit as permitted by this Section or otherwise, the prevailing party shall be entitled to costs and fees (including reasonable attorneys’ fees). Arbitration
pursuant to this Section shall be confidential, and neither you, nor GemsNY, nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement
or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. There shall be no right or authority for any claims subject to this arbitration clause to be
arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
YOU AND GEMSNY EACH HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Nothing contained in this Section shall limit our ability to terminate, or otherwise take action related to, your account as provided in these Terms.
17. TERM AND TERMINATION
These Terms will remain in full force and effect as long as you continue to access or use the Service, or until terminated in accordance with the provisions of these Terms. However, the provisions of these Terms that by their
sense and context are intended to survive the termination of these Terms shall survive the termination.
18. SEVERABILITY AND WAIVER
If, for whatever reason, any term or condition in these Terms is deemed unenforceable, all other terms and conditions will remain unaffected and in full force and effect. The failure to enforce any provision of these Terms
is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
19. ASSIGNMENT
These Terms shall be binding on the parties and their respective successors and assigns. These Terms may be assigned by GemsNY without restriction. These Terms may not be assigned or otherwise transferred by you without our
prior written consent.
20. MODIFICATIONS TO THESE TERMS
GemsNY reserves the right to change these Terms from time to time, with or without notice to you. If you continue to use the Service, you consent to the new Terms. We will always have the latest Terms posted on the Service.
21. HEADINGS USED IN THESE TERMS
The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
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