Terms of Service

 

Last Updated: September 30, 2018

 

Thank you for your interest in the Gesture application for your mobile device (the "App") provided to you by Gesture US Inc.  ("Gesture" "us" or "we"), and our web site at your gesture.com (the "Site"), as well as all related web sites, networks, downloadable software, and other services provided by us and on which a link to this Terms of Service is displayed (collectively, together with the App and Site, our "Service"). These Terms of Service (these "Terms"), including the Privacy Policy incorporated into these Terms by reference and any other applicable policies and guidelines, as may be updated from time to time, govern your use of the Service. These Terms constitute a legal agreement between you and Gesture. In order to use the Service you must agree to these Terms.

 

These Terms provide that with limited exceptions all disputes between you and Gesture arising out of or relating to these Terms or your use of the Service will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters covered by Section 17.3 of these Terms. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 17 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate most disputes with Gesture.

 

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.

 

Gesture provides a mobile app and web-based technology platform that connects consumers and any local random merchant/s with independent contract couriers to facilitate on-demand gift delivery service/s (known as the "Platform"). Through the Platform consumers will request that merchandise be delivered to a recipient, however the customer agrees that the item chosen to be delivered, be from any random local merchant or restaurant/s at the discretion or choice of Gesture. Using the platform and app technology, Gesture will make recommendations on where to purchase various items to be gifted and delivered chosen by the customer to fulfill that order.  Independent contractor couriers can access the Platform and receive delivery opportunities. Gesture IS NOT a retail store, restaurant, food delivery service, merchandise delivery service, or food preparation entity.

 

Gesture US Inc.  DOES NOT PROVIDE DELIVERY SERVICES. INDEPENDENT CONTRACTORS (EACH A "COURIER") OFFER DELIVERY SERVICES THROUGH USE OF THE SERVICE. Gesture OFFERS INFORMATION AND A METHOD TO OBTAIN COURIER SERVICES IN THE MEANS OF DELIVERING VARIOUS GIFTS, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE COURIER SERVICES OR ACT IN ANY WAY AS A COURIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY COURIER.

 

As provided in greater detail in these Terms, you agree, acknowledge and understand these material Terms:

• The App is licensed, not sold to you, and you may use the Service only as set forth in these Terms;

• Your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s ("Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;

• You consent to the collection, sharing, and use of your personally identifiable information in accordance with Gesture’ Privacy Policy;

• The Service is provided "as is" without warranties of any kind, and Gesture’s liability to you is limited; and

• Disputes arising under these Terms will be resolved by binding arbitration.

BY ACCEPTING THESE TERMS, YOU AND Gesture ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the Dispute Resolution and Arbitration section below for the details regarding your agreement to arbitrate any disputes with Gesture.

 

1. Account Access

 

You must be at least eighteen (18) years old to use the Service and MUST be at least 21 to purchase and send alcohol. By agreeing to these Terms, you represent and warrant to us:

I. That you are at least eighteen (18) years old, and 21 years old for alcohol purchases;

II. That you have not previously been suspended or removed from the Service; and

III. That your registration and your use of the Service is in compliance with any and all applicable laws and regulations.

If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.

 

2. Accounts and Registration

 

To access some and/or all of the features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, credit card information, e-mail address, phone number or other contact information). You agree that the information you provide to us is accurate and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for but not limited to Facebook, Google, or other third party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us via our Help Center.

 

3. Scope of License

 

The App is licensed, not sold, to you for use only under the terms of this license. Gesture reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, Gesture hereby grants you a personal, limited, revocable, non-transferable license to use the App on compatible devices that you own or control, solely for your non-commercial use.

 

You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. If you breach these license restrictions, or otherwise exceed the scope of the license granted in these Terms, you may be subject to prosecution and legal damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by Gesture that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license in which case the terms of that license will govern.

 

4. Payment Terms

 

4.1. General Payment Terms

Certain features of the Service, including placing orders, may require you to pay fees. Gesture may change the delivery fee, service fee or any other fees for any feature of the Service, including by adding fees, on a going forward basis at any time as we deem necessary for our business. Before you pay any fees, you will have an opportunity to review and accept an estimate of the fees that you will be charged. The final fees may differ from the estimate (if one is provided), which may be the result of any requested substitutions or the ultimate prevailing price of the items (discussed further below). In some cases Gesture may not be able to provide an estimate of the fees. All fees are non-refundable and will be quoted in the App in the local currency of the location where the order is being delivered. This no-refund policy applies at all times regardless of your decision to terminate your usage, our decision to terminate your usage, and/or any disruption caused to our Service for any reason whatsoever.

 

Gesture, at its sole discretion, may offer credits or refunds on a case-by-case basis; all credit and/or refund requests must be made within forty-eight (24) hours after the completion of the delivery for which the credit and/or refund request was made.

 

Gesture will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information. Gesture reserves the right to determine final prevailing pricing of all items ordered through the Service. Please note the pricing information published on the Site or in the App may not reflect the prevailing pricing. In some cases, the estimated pricing at time of checkout may differ from prevailing pricing; for instance, a merchant may charge more for some items than is estimated within the App. In cases in which prevailing pricing is different than the estimated pricing, the fees you are ultimately charged may be different than the estimate. You acknowledge and agree to pay the prevailing pricing and fees. Please visit our Help Center to learn more about how items are priced on the App.

Gesture, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your use of the Service or fees charged to you. Gesture reserves its right to expire or modify any promotion at any time.

 

4.2. Payment Authorization

 

You authorize Gesture to charge all sums for orders that you make and services you select to the payment method designated in your account. When you order on Gesture, we may issue a temporary pre-authorization hold which is placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total quoted at checkout. However, you will only be charged the final order total once your order is registered as complete within the Gesture system, which generally occurs between 24-48 business hours after you receive your order. In the event that the pre-authorization is greater than the final amount, the difference will be returned to you after your order is completed or cancelled, which may take up to 5 business days depending on your bank.

 

Gesture may also place an initial temporary pre-authorization hold on each new payment method you add to your account.

Gesture reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.

 

4.3. Delinquent Accounts

If payment for purchases on your account is delinquent, your account information may be sent to a collection agency / debt collector and you may be subject to a collection action, and payment of collection related fees and costs. If you have questions regarding an outstanding balance on your account, please contact us via our Help Center.

 

4.4. Customer Not Available

Gesture reserves the right to charge a customer the full order amount if the recipient is not at the designated delivery location when the courier arrives to complete the delivery.

 

4.5 Cancelled Orders

If you cancel your Gesture order you may be charged depending on what stage the order was in when you cancelled. If you cancel a delivery after the order was accepted, you will be charged the price of the item, including applicable taxes, plus a cancellation fee of up to $4. This constitutes that same definition as if you canceled an order after it is out for delivery, you will be charged the full price of the order. 

 

4.6 Returned Items

If an item has to be returned for any reason, you may be subject to a non-refundable $15 return/restocking fee. For alcohol items, the courier reserves the right to refuse delivery and return the item(s) if the name on the RECIPIENTS ID does not match the name on the order placed, if you or the RECIPIENT/S are not at least twenty-one (21) years old ("Legal Age"), if one cannot provide valid government-issued photo ID that they are Legal Age, or if you are visibly intoxicated.

 

5. Third-Party Interactions

 

5.1. Third-Party Providers

During use of the Service, you may purchase goods and services from third-party merchants through the Service. Any such activity, and any disputes, terms, conditions, warranties or representations associated with that activity, is solely between you and the applicable third party. Gesture and its licensors shall have no liability, obligation or responsibility for any purchase or transaction between you and any third-party provider. In no event shall Gesture or its licensors be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and Gesture disclaims any and all responsibility or liability arising from such agreements between you and a third party.

 

5.2. Couriers

You may engage third-party Couriers through the Service to provide delivery services to you and may interact with those Couriers. Any interactions or disputes between you and a Courier are solely between you and that Courier. Gesture and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.

 

5.3. Third-Party Advertising

The Service may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.

 

5.4. Links to Third Party Sites

The Service may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

 

6. Your Use of the Service

 

In order to use the Service, you agree to the following:

• The Service, including any content that forms part of the Service, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including copyright;

• You will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;

• Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without prior written authorization;

• You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human use;

• You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Service account without permission;

• You agree not to decipher, reverse engineer, decompile or disassemble the Service, or the software used to provide the Service, in whole or in part, or authorize, direct, or cause a third party to do so;

• You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, or any portion thereof, unless and solely to the extent Gesture makes available the means for embedding any part of the Service;

• You agree not to access, tamper with, or use non-public areas of the Service, Gesture’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Gesture’s providers;

• You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;

• You agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Gesture is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service;

• You agree that your use of the App may incur third-party fees, such as fees charged by your Carrier for data usage, and may be subject to third-party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;

• You agree not to introduce viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code into the Service;

• Alcoholic beverages (including but not limited to beer, wine, cider, and spirits, as applicable; all referred to as "Alcoholic Beverages") may only be purchased by individuals, including without limitation Customers, who are Legal Age. If you are a Customer, you expressly represent and warrant that: (i) you and/or the person (recipient) are of Legal Age; and (ii) you and/or the person you are having the item delivered to will provide bona fide government-issued photo identification to your courier upon delivery you and/or the person. Valid forms of identification include but are not limited to: (i) a valid motor vehicle operator’s license, (ii) a passport issued by the U.S. or by a foreign government, or (iii) a valid identification card issued to a member of the Armed Forces that includes a date of birth and a picture, showing you and/or the persons Legal Age. Deliveries of Alcoholic Beverages may not be made to anyone who is intoxicated, regardless of his or her age. You further understand and acknowledge that neither Gesture nor the courier can accept your order of Alcoholic Beverages, and the order will only be delivered if the third-party merchant accepts your order; and

• You agree not to do any of the acts described in this Section 6, or to assist or permit any person in engaging in any of the acts described in this Section 6.

Facilitation of Charges. All Charges are facilitated through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). Gesture may replace its third-party payment processing services without notice to you. Charges shall only be made through the Gesture Platform. With the exception of tips, cash payments are strictly prohibited. Your payment of Charges to Gesture satisfies your payment obligation for your use of the Gesture Platform and Services.

No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Gesture Platform, any disruption to the Gesture Platform or Services, or any other reason whatsoever.

Coupons. You may receive coupons that you can apply toward payment of certain Charges upon completion of a delivery. Coupons are only valid for use on the Gesture Platform, and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined, and if the cost of your delivery exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the delivery. For quoted or variable fares, Gesture may deduct the amount attributable to the Service Fee, Tolls, or Other Charges before application of the coupon.

 

Additional restrictions on coupons may apply as communicated to you in a relevant promotion or by clicking on the relevant coupon within the Promotions section of the Gesture App.

Credit Card Authorization. Upon addition of a new payment method or each delivery request, Gesture may seek authorization of your selected payment method to verify the payment method, ensure the delivery cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank. Check out our Help Center to learn more about our use of pre-authorization holds.

 

7. Consent to Use of Data

 

Please see Gesture’s Privacy Policy, for more information regarding information Gesture collects, and how it uses and shares that information.

 

8. Intellectual Property Ownership

 

The Service, and the media and materials contained in the Service, including all intellectual property rights in the Service, are the sole and exclusive property of Gesture and its licensors. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Gesture in these Terms are expressly reserved.

 

9. Feedback

 

You may choose to, or Gesture may invite you to, submit comments, bug reports, ideas or other feedback about the Service ("Feedback"). By submitting Feedback, you agree that Gesture is free to use such Feedback at its discretion without any obligation to you. Gesture may also choose to disclose Feedback to third parties. You hereby grant Gesture a royalty-free, perpetual, irrevocable, transferable, sub-licensable, worldwide, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.

 

10. Communications

 

10.1 Text Messaging

By using the Services or Software, you agree that the Company and those acting on its behalf may send you text (SMS) messages at the phone number you provided us. These messages may include operational messages about your use of the Services, as well as marketing or other promotional messages. You will not be able to use the Services or Software without agreeing to receive operational text messages. You may opt-out of receiving marketing text messages at any time by sending an email to smsops@yourgesture.com indicating that you no longer wish to receive marketing texts along with the phone number of the mobile device receiving the messages. You may opt-out of receiving all text messages from Company at any time by deactivating your account or sending an email to smsops@yourgeture.com indicating that you no longer wish to receive any text messages, along with the phone number of the mobile device receiving the messages. You may continue to receive text messages for a short period while the Company processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing texts is not a condition of any purchase or service offered by Company. If you change or deactivate the phone number you provided to Company, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number.

You also agree to full responsibility when providing a phone number for the recipient. You also understand, acknowledge and agree that you have consent from the recipient to provide such information for the purposes of notification of delivery updates sent from Gestures automated platform.  

 

10.2 Push Notifications

 

When you install our app on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.

 

10.3 Email

 

You agree that we may send you emails concerning our products and services, as well as those of third parties. You may only opt-out of promotional emails and can do so by following the unsubscribe instructions in a promotional email.  

You also agree to full responsibility when providing an email for the recipient for the purposes of sending a special message through the Gesture app platform and technology. You also understand, acknowledge and agree that you have consent from the recipient to provide such information for the purposes of notification of delivery updates from Gestures automated platform.  

 

11. Indemnity

 

You are responsible for your use of the Service, and you agree to defend (at Gesture’s option) and indemnify Gesture and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:

a. Your violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation;

b. Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or

c. Any dispute or issue between you and any third party, including any Courier, restaurant or other third-party merchant

Gesture reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, Gesture may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim without Gesture’ prior written consent.

 

12. Disclaimer of Warranties

 

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY Gesture TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Gesture MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. Gesture DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE SERVICE OR ANY PRODUCTS OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Gesture’ SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Gesture IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Gesture RELIES UPON RESTAURANTS AND VENDORS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS AND RETAILERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. Gesture DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION NUTRITIONAL AND ALLERGEN INFORMATION.

Gesture DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A RESTAURANT OR OTHER THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR THIRD-PARTY SERVICE, AND Gesture WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

 

13. Limitation of Liability

 

IN NO EVENT SHALL Gesture’ AGGREGATE LIABILITY EXCEED THE FEES ACTUALLY PAID BY YOU TO Gesture IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR $100, WHICHEVER IS LESS. IN NO EVENT SHALL Gesture AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF Gesture AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

THE SERVICE CONNECTS YOU TO COURIERS AND MERCHANTS FOR THE PURPOSES OF FACILITATING COURIER SERVICES. Gesture WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY COURIERS AND YOU EXPRESSLY WAIVE AND RELEASE Gesture FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE COURIERS. Gesture WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS PROVIDED BY MERCHANTS OR RETAILERS ON THE PLATFORM, AND YOU EXPRESSLY WAIVE AND RELEASE Gesture FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO MERCHANTS, RETAILERS, AND THE ITEMS THEY PROVIDE. Gesture WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND ANY COURIERS, MERCHANTS, OR RETAILERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SERVICE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE Gesture FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SERVICE.

THE QUALITY OF THE COURIER SCHEDULED THROUGH THE USE OF THE SERVICE IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY COURIER WHO ULTIMATELY PROVIDES DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE SERVICE, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SERVICE AT YOUR OWN RISK.

 

14. Notice

 

Gesture may give notice by any means of communication reasonably anticipated to notify you of the information provided. By way of example only, such communication may be a general notice on the Service or via email to the email address listed on your Gesture account. It is your obligation to update your account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch.

You may give notice to Gesture (such notice shall be deemed given when received by Gesture) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Gesture at the following address:

 

Gesture US Inc. 

303 Spring Street

New York, NY 10013

Attention: General Counsel

 

15. Assignment

 

You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be void.

 

16. Term and Termination of Agreement

 

These Terms are effective until terminated by you or Gesture as described below. Your rights under these Terms will terminate automatically without notice from Gesture if you fail to comply with any of these Terms (including by violating any license restriction contained in these Terms). In addition, Gesture may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate these Terms at any time by closing your account, uninstalling the App, and ceasing use of the Service.

 

17. Dispute Resolution and Arbitration

 

17.1. Disputes

Gesture is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, any Courier or other third party. Disputes between a user and Gesture are subject to this Section 17.

 

17.2. Generally

In the interest of resolving disputes between you and Gesture in the most expedient and cost effective manner, you and Gesture agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Gesture ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

17.3. Exceptions

Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to:

a. Bring an individual action in small claims court;

b. Pursue an enforcement action through the applicable federal, state, or local agency if that action is available;

c. Seek injunctive relief in a court of law; or

d. To file suit in a court of law to address an intellectual property infringement claim.

17.4. Arbitrator

Any arbitration between you and Gesture will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Gesture at legal@yourgesture.com.

17.5. Notice Process

A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice").

 

Gesture’s address for Notice is:

Gesture, Inc.

303 Spring St

New York, NY 10013

Attn: General Counsel

 

The Notice must:

a. Describe the nature and basis of the claim or dispute; and

b. Set forth the specific relief sought ("Demand")

We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Gesture may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Gesture must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

If our dispute is finally resolved through arbitration in your favor, Gesture will pay you the highest of the following:

I. The amount awarded by the arbitrator, if any;

II. The last written settlement amount offered by Gesture in settlement of the dispute prior to the arbitrator’s award; or

III. $1,000

 

17.6. Fees

If you commence arbitration in accordance with these Terms, Gesture will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules.

Any arbitration hearing will take place at a location to be agreed upon in Manhattan Borough County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted:

a. Solely on the basis of documents submitted to the arbitrator;

b. Through a non-appearance based telephone hearing; or

c. By an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address

If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Gesture for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

 

17.7. No Class Actions

YOU AND Gesture AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Further, unless both you and Gesture agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

 

17.8. Modifications

If Gesture makes any future change to this arbitration provision (other than a change to Gesture’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Gesture’ address for Notice, in which case your account with Gesture will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.

 

17.9. Enforceability

If Section 17.7 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.

 

18. Modification of these Terms

 

We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms of Service. In the case of material changes to these Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism.

Material changes to these Terms will be effective upon the earlier of:

• Your first use of the Service with actual notice of such change, or

• 30 days from posting of such change.

Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.

 

19. Confidentiality

 

You acknowledge and agree that when using the App, you may have direct or indirect access or exposure to Gesture’ confidential information ("Confidential Information"). Confidential Information includes Gesture’ data, provider IDs, user information, delivery recipient information, delivery provider information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Gesture designates as being proprietary or confidential or that you should reasonably know to treat as confidential.

You acknowledge and agree that: (a) all Confidential Information shall remain the exclusive property of the Gesture; (b) you shall not use Confidential Information for any purpose except in furtherance of your use of the App; (c) you shall not disclose Confidential Information to any third party; and (d) you shall not store or keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of your use of the App or at the request of Gesture.

Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no action or omission by you; (b) was possessed by you prior to your use of the App without an obligation of confidentiality; or (c) is disclosed to you by a third party having no obligation of confidentiality with respect thereto.

 

20. General

 

These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Gesture agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Manhattan Borough County, New York for the purpose of litigating any dispute. We operate the Service from our offices in New York, and we make no representation that materials included in the Service are appropriate or available for use in other locations. No joint venture, partnership, employment, or agency relationship exists between you, Gesture or any third-party provider as a result of the Terms or use of the Service.

If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of Gesture to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Gesture in writing.

This Agreement comprises the entire agreement between you and Gesture and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in these Terms.

 

21. Notice Regarding Apple

 

To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 21. You acknowledge that these Terms are between you and Gesture only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Service and the content thereof.

Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.

Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to:

I. Product liability claims;

II. Any claim that the Service fails to conform to any applicable legal or regulatory requirement; and

III. Claims arising under consumer protection or similar legislation

Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

You hereby represent and warrant that:

I. You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and

II. You are not listed on any U.S. Government list of prohibited or restricted parties.